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 ...

K. JAMES VI. Parliament I.

QUeen Mary being Queen during her Life,* 1.1 appoints the Earl of Murray to be Regent, and his Election is Confirmed by this Act, and it is Declared to last till the Kings age of seventeen, at which time it is Declar'd, that he shall enter to the exercise of the Government; I find amongst the Un-printed Acts, subjoyn'd to this Parliament, a Resigna∣tion of the Crown made by her, which it seems was neces∣sary, she being Soveraign du∣ring her Life, as the King is during his Life.

Observ. She calls the Earl of Murray Brother, though he was her natural brother, which was conceal'd ob honorem, but Ineptly and though the Earl of Murray is here call'd the Kings Cousine, yet he should have been call'd his Uncle: Nor are Uncles properly Cousines; But I think this was because all Earls who are Counsellors are call'd Cousines and Counsellors; but yet if he had been to have been call'd a Counseller, for this cause he should have been call'd Cousin and Counseller. I have also seen a Commission to one of the Kings Natural Sons in England, wherein he was call'd our Cousin.

It is observable, that sometimes the Acts of this Parliament bear, to be by Our Soveraign Lord, my Lord Regent and the three Estates, as the 20, 21, and 29. which is not well exprest, for the Estates

and Regent had no power to make Acts, and therefore the rest bear better, Our Soveraign Lord, with the advice and consent of his clearest Regent and three Estates.

Nota, The Parliaments saying my Lord Regent, seems very ill Grammar, for it should have been the Lord Regent.

THose Acts Confirm, and relate to former Acts past in the Par∣liament,* 1.2 holden by Queen Mary, August 24. 1560. and yet we find no such Parliament; but the true answer to this is, as ap∣pears by Spotswoods History, that the Lords of the Congregation having met in anno 1560. and having past those Acts, abolishing the Popish Religion, many of the Members of that pretended Par∣liament protested, that this meeting was no Parliament, because there was none there to re-present the Queen, nor the King of France her Husband, whereupon Sir James Sandilands was sent over to procure a Ratification of these Acts, which being deny'd, the same Acts are here Ratifi'd by the Earl of Murray, when he came to be Regent, as if they had been past in a lawful Parlia∣ment.

* 1.3FOr understanding of this Act, and the nature of Patronages, it is fit to know that the Right of Patronage is a power of Nomination granted to him who either was Master of the ground whereupon a Kirk was built, or who doted any thing to the Maintainance of it, or who did build a Church, to present one to serve the Cure thereat, in all which cases he is accounted Pa∣tron, and may present a person to be Minister, or to any other Be∣nefice, and that only if he reserve such a power to himself in his Mortification, for Hope in his Lesser Practiques, is of opinion that reservation is necessary, and the reason is, because jus patronatus est servitus libertati Ecclesiae imposita, and therefore is not to be al∣low'd, except the same was adjected at first to the Mortification, Molin. ad Reg. de infirm. The first mention of Patronages is by St. Pan∣lin. about the Year 431. and Justinian I find mentions the Novel. 67.

Patronages in Scotland are either Laick or Ecclesiastick; all Pa∣tronages are accounted Ecclesiastick, which either belong to Eccle∣siastick persons, or which have flowed from the King (though by Infeftment) since the Reformation, in so far as concerns these Be∣nefices, wherein the King succeeds in place of the Pope, who be∣fore the Reformation, was accounted universal Patron; Laick, Patronages are such as have been Disponed before the Reformati∣on by His Majesty, and these pass by Infeftment, or have been found∣ed by Laick persons since, and these must be now obtained by a Signature from His Majesty, even by such as either contribute, dotem, sundum, edisicationem. The words of the Concession are, His Majesty grants advocationem, donationem & jus patronatus Eccle∣siae de, &c.

It is expedient to know the differences betwixt the old Laick Patronages, and these which are Dispon'd by the King since the Reformation, because by the Act of Annexation, July 1587. all

Kirk-lands, are annexed to the Crown, and an exception is al∣ways made of Lands which pertains to the Benefices of Laick Pa∣tronages, which exception is only extended to Laick Patronages, which were lawfully established before the Reformation; which is also conform to the Canon Law, by which the Pope may prejudge an Ecclesiastick Patronage, but cannot a Laick, Bevg. de union. be∣neff. §. 3. num. 9.

After one is prefer'd by the Patron, he hath only jus ad rem, but his Collation and institution which is given him by the Church-man, to whom the Presentation is directed, gives him jus in re; but if the Benefice to which the Patron presents be a Benefice without Cure, that is to say, having no care of Souls, as Provestries, Pre∣bendries, &c. eo casu, there needs no Collation or Institution, De∣cember 11. 1632. L. Lugtoun con. Edmiston.

The Patron must present one within six moneths after he comes to know the vacancy, else the Presentation pro eâ vice, belongs to the Church jure devoluto; in which we agree with the Customes of Normandie, as in many other things, But Molineus does more rationally conclude, ad Reg. de infir. resig. num. 63. That the Bi∣shop does confer jure proprio, after elapsing of these six Moneths, because all Churches of his Diocess sunt in illius ordinatione; so that substracto per lapsum hunc jure patronatus quod huic juri dero∣gabat, redit ad suam naturam quod probatur ex c. 22. &c. 2. Extr. de suplend. negl. praelat. and yet when the Arch-bishop presents upon the Bishops failʒure, he does it only jure devoluto nam inter utrum∣que est gradus jurisdictionis quae ab inferiori puta Episcopo post elapsum tempus legitimum devolvitur ad superiorem puta Archi-episcopum sed pa∣tronus nullum facit jurisdictionis gradum; but if the Presbytrie re∣fuse to admit a qualified Minister presented by the Patron, then the Patron may retain the whole Fruits of the Benefice in his own hands, Act 115 Par. 12 Ja. 6. This retention is likewise allowed by the 1 Act Par. 21 Ja. 6. But whereas by the former Act, the Presentation jure devoluto fell to the Presbytries by the last Act it falls to the Bishop; but though by these Acts it be lawful to the Patron to retain the vacand Stipends, or Fruits of the Benefice in his own hand, yet it may be doubted, if he may apply them to his own use, for these are not only different effects, but it seems that this being contrary to the nature of things Sacred, and to the principles of the Canon Law, he cannot, for though by cap. in qui∣busdam 12 de paen. cap. 13 de elect. Patrons had the Custody of their own Churches when they vacked; yet the Fruits of all vacant Churches were to be reserved for the future intranti, futu•• ro Clerico cap. 2. Extr. ne sede vacant. and though at first Kings, and then all Patrons pretended to the intrometting with the Fruits of their Churches, especially in Britain, as Malch. West∣monst. observes in the Year 1240. yet Alexander 1. by the cap. 14. Extr. de off. Jud. ord. appointed, that even Procurators should be appointed for intrometting with these Fruits during the vacancy quod patroni laici curam tantummodo & defensionem suarum Ecclesia∣rum haberent non etiam potestatem ullam in rebus quas iis donarunt

vid. can. Noverunt 10. Quest 2. Notwithstanding of which Canons Hostiensis, and others, except such cases, wherein by the founda∣tion, or by a singular priviledge, or by prescription the contrary is introduced, and Molineus asserts, that all Laick Patrons may ap∣point Administrators, and gather up the Rents, though they cannot fructus Ecclesiarum vacantium in usus ••uos converteresed futuro Clerico re∣servare vel utili••er in Ecclesias impendere; and therefore it seems, that the Parliament having only allow'd Laick Patrons to retain these Stipends during the vacancy, they can only apply them to a pious use, but can in no case appropriat them to themselves; for as such an appropriation would be sacrilegious, so it would be suf∣ficient for preserving the Patrons Right, that he might bestow them upon such pious uses as he pleased; but since the Act 52 Par. 1 Ch. 2. and the Act 23 of the third Session of that Parliament, ap∣point all vacand Stipends to be imploy'd for Universities, and other pious uses, and that there are several exceptions there made, and yet none in favours of Laick Patrons, I see not why the Rents of Laick Patronages fall not likewise under the Collection of va∣cand Stipends, the Laick Patrons having been re-presented in that Parliament, and so consenting to this Act, especially seing the said Act 52 declares that the Benefices of vacand Kirks, should du∣ring the vacancy be imploy'd upon pious uses, and the Colle∣ctors of vacand Stipends, have alwise been in use to Collect these.

Selden in his Treatise of Tithes, asserts that the Right of Investiture, was at first reserv'd by Lay Patrons in the Foundations, and that the Gleib and Tithes were at every Vacation confer'd by the Pa∣trons to the new Incumbents, by some Simbole or Ceremony, not differing from our Seasines; and it is probable that for some ages after Charles Martels Reign it was so, because Tithes were then Transmitted by Laical Infeudations; and I have seen several Rights of this nature in the Chartularies of our Abbacies; and though af∣terwards this was condemn'd by many Councils, yet Kings reserv'd to themselves the vacant Fruits of Bishopricks, as being Founders and Patrons of these Benefices; and with us this Clause, reserving to the Patrons power to retain these Stipends during the vacancy, seems a vestige of their old pretension; but I shall examine all this very fully in my Treatise of Tithes.

If the Bishop refuse to admit one presented by the Patron, then recourse must be to the Arch-bishop, and if he likewise give not redress, then the Council will give Letters of Horning to Charge the Ordinary to receive the person presented; and by that Act the Bishop may refuse to admit a person, who hath not reserv'd to himself a sufficient Maintenance in setting Back-tacks of his perso∣nage to the Patron, which paction is accounted Simoniacal, and the Lords of Session declar'd only Judges competent thereto, though by the Ch. 2 lib. 1. R. M. patronages are declar'd to be∣long to the Ecclesiastick Jurisdiction, and the said paction is pro∣bable by the parties Oath, albeit regulariter nemo tenetur jurare in

suam tur••itudinem by the 1 Act Par. 21 Ja. 6. It is appointed that the Bishop shall not refuse to admit any qualifi'd Minister, who hath been once admitted and receiv'd a Minister; by which it is clear that the Bishop is not oblig'd to receive an Expectant, who is ••ot an actual Minister, and the reason is, because non constat, if he be yet qualified, and the Bishop cannot be obliged to En∣ter him, and consequently is not oblig'd to accept his Presenta∣tion.

By the Canon Law four Moneths were allow'd only to a Laick Patron, and fix to an Ecclesiastick; this was our Law before this Act, as is clear by the 2 cap. R. Mai. lib. 1. and there was good reason it should have been so, for the constitution concerning it, c. 2. Ext. de suplend. negl. prael. is written Episcop•• St. Andreae in Scotiâ; and this is cited as our Law, by Le Roy de jure patron. c. 28. and in case of the Patrons negligence, a gradation was allow'd from Inferiors to Superiors, till it ended in the Pope.

By that Law likewise, a Laick Patron might vary in his presen∣tation; but an Ecclesiastick person could not; and if an Ecclesia∣stick Patron presented a person that was unworthy, he lost the right of his Presentation pro ea vice; but a Laick patron did not: and by our Law, if the Patron present one that is unfit, he may pre∣sent another, and a third, providing all his presentations end with∣in six Moneths, for the presenting one within six Moneths inter∣rupts not so, as that he may thereafter present another within other six Moneths, as some think, except his not admitting be occasion∣ed by the Bishop, who cannot seek a jus devolutum, by his own fault, by the 7 Act Par. 1 Ja. 6. the gradations then allow'd, were from the Ordinary to the Super-intendant, and Provincial-assembly, and from them to the General-assembly. Where there are more Patrons, they have right to present per vi∣ces, and he who hath been in possession of presenting trina vice, that is to say, the three last times successivly, without interruption, hath the only right of presentation in possessorio, in a Competition with the other Patrons pro ea vice, without prejudice to the rest to declare their Right for the future, as accords; and by some it is alleadged, that Presentations trina vice ex decessu incumben∣tis, excludes all other Rights etiam in petitorio, but this is not our Law.

Doctor Forbes in his Treaty of Simony, exclaims extreamly a∣gainst this Act of Parliament, for allowing the Incumbent to set Tacks, reserving to himself a sufficient Maintainance, and he urges violently, that this Act allows rather Simony, than ac∣cuses it.

IT may be argu'd that this Act debars not such of the Royal Line as have right to succeed to the Crown,* 1.4 for this relates only to a Coronation, and the Coronation it self is not necessary, Corona∣tio enim magis est ad ostentationem quam ad necessitatem, nec ideo Rex est quia Coronatur, sed Coronatur quia Rex est Oldrad. Consil. 90. num.

7. Balbus. lib. de Coronat. pag. 40. Nor do we read that any Kings were Crowned, except Joash, in Scripture, and Clovis King of France was the first that was Crowned; nor are any Kings of Spain Crown∣ed to this day, neither is a Coronation Oath requisite, Sisenandus being the first who in the 4 Tolletan Council gave such an Oath a∣mongst the Christians, as Trajan was the first among the Heathen Emperors, Gregory was the first of our Kings, who anno 879. gave the first Coronation Oath, having embraced the Christian Faith, in which he was very zealous, swore to preserve it; but this Oath was not made to the people, for they were not present, but to GOD; nor could he, as Blackwood observes, Apol. pro Regib. c. 26. bind his Successors, quia par in parem non habet Imperium, nor could he bind himself for them to the people, quia Cliens jurat Domino non Dominus Clienti, tit. de formâ fidelitatis, lib. 2. Feud. Likeas it may be said that this Act being made in the King's Minority, and being prejudicial to the right of Blood in his Successors, it falls under his Revocation, made Par. 11. cap. 31. whereby he expresly re∣vocks every thing which might hurt the priviledge of the Crown, which this Act 8 would do, if Kings were thereby debarr'd from Succession, for differing in Religion from their Subjects: This is contrary to the Confession of Faith, which tyes us to obedience to our King, though an Heretick; and since private Subjects are not debarr'd upon this account from their property, the King ought not to be debarr'd from the exercise of his Government, which is his Property, and that Kings cannot be debarr'd by a Statute, is clear by all the Doctors, in Can. qui jura distinct. 8 Aecurs. in l. Princeps ff. de Legibus, l. 4. de natal. restit. l▪ Jura Sanguinis, ff. de Reg. Jur. sed naturalia instit. de Jure Naturali forma Juramenti quod praestant Reges in Coronatione per Gloss. 1. in cap. fin. de Eccles. aedif. est quod jurat. se Regni sui jura illibata conservaturum, vid. Ant Corset. de potest. Reg. pars 3. num. 62. Some are also of opinion, but injustly, that Co∣ronation is to a King the same thing that Investiture is to a Subject, and therefore as Heirs may continue the possession of their Prede∣cessors before the Infeftment, but cannot sell, excamb, or do any other deads of property till he be Infeft, so though a King before he be Crowned may do these things that are necessary for pre∣sent administration, yet he cannot hold Parliaments, dispone upon annexed Property, and do any other deeds which require the ex∣ercise of the Royal Power, till he be actually Crowned: And whereas this Act ordains that all future Kings shall take this Oath at their Coronation and the recept of their Princely Power, which implyes that they should take this Oath before they can admini∣strat: It seems that this implyes a contradiction, for they must ad∣ministrat in appointing the Coronation, and ordering all things thereto relating; and our King did govern long ere he was Crown∣ed; but these words are exegetick only of the Coronation, and by them is meant the recept of his Authority in the Coronation. This Act is Ratified by the 99 Act, 7 Par. Ja. 6. vid. Act 2. Par. 3. Ch. 2.

IT is fit to know,* 1.5 that whatsoever of the thirds was not assign'd to Ministers, did appertain to the King; and it was called Superplus, whereof there was yearly a Book made, which al∣tered, and was more or less, according to the Assignation to the Ministers, and according to the Superplus-Books, the Kings Colle∣ctor did charge for the Superplus for the King's use, and with it also the omitted Benefices, which the Prelats and Beneficed persons o∣mitted in the up-giving of their Rentals, and also for common Kirk, and Friers Lands, which also with the thirds were appoint∣ed for the uses aforesaid.

The Rent of the thirds for the King's use, is altogether extinguish∣ed, partly by restitution of Bishops, who have right to their own thirds, and partly by erection of Abbacies and Priories, in which the thirds are discharg'd in favours of the Lords of Erection, they plant∣ing the Kirks. Likewise in Parliament, 1617. and 1621. And in our late Parliaments there was Commission granted by the Parliament for planting of Kirks, which has made the old Book of the Assignations of Ministers Stipends, and yearly Plat thereof, to be out of use. Many of these Books of Assumption are still preserv'd, and they are very useful for clearing what the old Rentals of Benefices were, so that it may be known whether Benefices be set with di••••••nution of the Rental.

FOr the better understanding this Act, it is fit to know▪* 1.6 that a Pro∣vost with us, is that which praepositus is in the Canon Law, prae∣positura est dignitas, quando est Collegiata alias non Fed. de sen. Consil. 80. Alia ergo est Jur. Can. praepositura Collegiata, alia non Collegiata; But with us, where there was a Colledge Kirk, it was govern'd by a Provost, and Prebends; and generally it was institute for Divine Service; but there are Colledges institute for instructing of Youth, as the old Colledge of St. Andrews, which is governed by a Pro∣vost.

A Provost is in our Law no Prelat, and therefore Tacks set by him are null, without consent of the Patron, 12 July 1616. Hope tit. Kirk; but è contra, the Patron may gift Prebendaries without consent of the Provost, or Prebends, except it be otherwayes pro∣vided by the Foundation.

The Collegiat Kirks, Provostries, Prebendaries, having been founded by Noblemen, for their own ease and advantage, they re∣tain still a greater power over them than over any other Benefices, and therefore by this Act the Patrons of these may provide them to Bursers or others, notwithstanding of the Foundation, which is ra∣tified by the 158 Act. Par. 12 Ja. 6. and by the 54 Act, Sess. 1 Par. 1 Ch. 2 vid. observ. on that Act.

FOrnication is now punish'd only by the Kirk Session, and this Act is not exactly observed,* 1.7 for the offenders now only pay an Arbitrary Fine, and stand upon the Stool of Repentance.

* 1.8THis Act and the next are explained in my Criminal Treatise, Tit. Incest.

* 1.9THe melting down of any Money already Coined within the Kingdom, under the pains here exprest, is punish'd with us, because our Coyn, being as fine as our Plate, it would be thus melt∣ed down, and so the Stock of the Money would be impoverished; and as the 66 Act, Par. 8. Ja. 3. observes, it would waste and minish by translation in the fire; but the Question being agitated, whether forreign Coyn may be melted for Bullion; it was urg'd, that by this Act no Gold nor Money already Coyn'd within this Realm was to be melted; for by the said 66 Act, no Gold nor Money that bears Form, and is Printed, should be melted: but to reconcile these, the answer is, that if Money be once allow'd to be current here by direct allowance, as by Proclamation, it is not thereafter to be melted down; and so it was decided in the Lord Hattons case, Feb. 1683.

* 1.10THough the Lords of Session are not Judges competent to re∣duce Sentences past in Parliament, as the more Soveraign Ju∣dicature, yet they are Judges competent to reduce Rights confirm∣ed in Parliaments, whereby the Confirmation falls in consequence, quia confirmatio nihil novi juris tribuit, vid. 25 March. 1631. Bishop of Dunkell contra the Lord Balmerinoch.

This Act against forbidden Weapons is explained by me in my Criminal Treatise. Tit. 32.

* 1.11VId. the Criminal Treatise. tit. Falshood.

* 1.12THis Act was to supply the nullities which could have been objected against such Rights by the Court of Rome, who pretended to the only right of bestowing Church-benefices, so that our separation from the Church of Rome was first authorized by the Parliament in the year, 1560.

* 1.13VId. Crim. tit. Theft: But it is now fit to observe, that when any-man cryes for help against Thieves, all who are desired are obliged to concur with the Owners of the Goods, under the pain to be holden partakers of the Theft, which Huy and Cry with us was called Quiritatio by the Romans, by the Greeks 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, vid l. 1. & 2. Cod. de his qui lat. & l. 1. ff. de serv. fugitiv.

* 1.14ALthough by our Law Pactions for Gifts, or Rights to accresce to private men, though not actually as yet fallen to them, are valid; and thus it has been found, that a man may renounce or s••ll haereditatem futuram; yet by this Act a gift of Escheat, when a Party shall be denounced, is declared not to be valid, because this may oc∣casion

the person whose Escheat is so gifted, to be denounced viis & modis, and this proceeds upon the same reason that the Civil Law discharges such deeds, quae praebent votum captandae mortis alienae, and by the Canon Law a Benefice cannot be promised or bestowed when the same shall happen to vaik, nec confirmatur sequenti vacatio∣ne col••atio, C. proposuit, de con. preb. Ca. 2. de preb. in 6. & argumento hujus legis, it seems that the survivances of Offices should be null by the same parity of reason, for these preclude the King from his free Gift, and are the occasion of snares: Likeas, such Gifts by our Law and Style should express modum vacandi, which cannot be done where there is no vacation; and though we have no express Statute, yet••by our Practice, which observes Styles as Statutes, if a Gift ex∣press not modum vacandi, it will be null; so a Gift of Escheat not mentioning the Horning whereupon it proceeded, was not sustain∣ed, though a Horning year and day before the date of the Gift was Libell'd on in the Declarator, and though the Gift was past the King's own Hand at Court, where Hornings could not be got, 20 November 1628. Welston contra Stuart. For if this had been sustain'd no Horning had ever been exprest thereafter, but the Donatar had still choos'd out one of the meanest Debts, since he is bound to pay the Debt in the Horning by his Gift.

THough this Act requires that Seasins within Burgh should be subscrived by the Clerk,* 1.15 and given by the Bailie of the Burgh, yet the Lords sustain'd a Seasine of Lands within Burgh gi∣ven by the Sheriff and Sheriff-Clerk, where there were no Magi∣strats or Town. Clerk in Office at the time that the Seasine was gi∣ven, 21 July, 1666. Thomson contra Mackitrick. This is one of the instances that, necessitas non habet legem, vid. 11 Act, 3 Par. Ch. 2.

THis Act was but temporary, and so is useless now.* 1.16

THis Act is Ratified by the 15 Act, 2 Par. Ch. 2. and the rea∣son why Maltmen are discharg'd to have a Deacon, is,* 1.17 be∣cause at their meetings they might easily conspire to set a price upon the Victual, and upon the Ale and Beer at their pleasure, and force the Gentlemen to sell at any rates.

IT may seem strange that this Act made by Q. Mary should be in∣sert here, but that Parliament holden upon the 19 day of April,* 1.18 1567. is not at all Printed, and therefore it has been thought fit to insert this Act in favours of the reform'd Religion amongst her Sons Acts, and to let it continue in her name, because it might clear that her Majesty had consented thereto in her own Reign.

This Act bears an acknowledgment of the Queens deriving her Authority Royal from God, which has been insert by our Reformers, to show their abhorrency of their opinion, who think that our Mo∣narchs derive their power from the people.

THere is no such Parliament as that here mention'd to be held upon the 29 of December,* 1.19 1567. and therefore the 33 Act is here renew'd, but it was needless to have made a special Act for

allowing this to be Printed; for both these Acts 32 and 33 might and should have been one, vid. obs. on this Act in my Crim. Tit. Treason.

King JAMES the sixth, Parliament 2.

* 1.20BY this Act it is clear that Commissions for Regents of the Kingdom were then subscrived, whereas they are now su∣perscrived; and were then past under the Privy Seal (as all Factories, Assignations, or other private Rights grant∣ed by the King are as yet) but now all such publick Trusts are past under the Great Seal.

Nota, What was then a Regent is now a Commissioner, which word is but late, and the Regent was then called Protector. The first Commissioner mention'd in our Laws is the Earl of Montrose, for the Parliament 1604. but that Inscription speaks nothing of a Commission under the Great Seal, as all subsequent Inscriptions do from the year 1607. and downwards.

Many Acts in this and the ensuing Parliament bear, With advice of the Regent, three Estates, and hail Body of the Parliament, which words, the hail Parliament, seems superfluous, for the King and the three Estates are the hail Parliament. But this was probably in∣serted either to show the unanimity of the Parliament, or to include the Officers of State, because they are not comprehended under any of the three Estates, and this may be adduc'd to redargue their o∣pinion, who think that the Officers of State did not sit in Parlia∣ment till the Parliament 1633. nor do they yet sit as such in the Parliament of England. For I find them marked in the Sede∣runts very anciently, but differently, for though now they are called, and are also marked down in the Sederunts after the Lord Ba∣rons, and are therefore called Lords, yet sometimes the Sederunt adds, after the Burghs, Together with the Officers of State; and the Se∣derunt of the Par. 15 bear▪ That the Kings Majesty, and Officers of State declare the Parliament to run, and ordain the Articles to meet.

* 1.21IT is fit to know that all Alienations and Dispositions made by persons who were thereafter forfeited for Crimes of Treason, are null, if they be made post commissum crimen, though they be made before Sentence or Declarator, and that though it may be pretend∣ed that in some latent Crimes of Treason, such as where Treason is inferr'd for concealing and not revealing Treason, the Subjects could not know the Committers guilt, and so might bargain with them, or take rights from them; but yet such Heretable Rights are declar'd null because the King having Feued out his Lands, he is not obliged to acknowledge any singular Successors, except their Rights were confirm'd, & sibi imputent, who did not confirm. This Act is ratified by the 65 Act, 5 Par. Ja. 6. and all former practiques contrary thereto are rescinded, which clause in that Ra∣tification was necessary, because as Sinclair observes in his old

Practiques there had been several Decisions past in favours of the Earl of Mortouns Creditors, sustaining Rights made by the Earl of Mortoun, who was after 20 years latent guilt convict for concealing the design of murthering the Earl of Lennox Queen Maries Hus∣band. As these Acts strike against Heretable Rights made by for∣feited persons, so by the 202 Act, 14 Par. Ja. 6. all Bonds, Obliga∣tions, Factories, Pensions and Assignations granted by forfeited persons, are declared null, except these Rights be confirmed by the King, or authorized by a Decreet of the Judge before the citing of the persons forfeited; from which Act it may be inferr'd, Arg. le∣gis, that such Rights granted post commissum crimen, but before ci∣tation are valid, though not confirmed by a Decreet, if they were granted for true debts prior to the committing of the Crime, since this Act runs only against fraudulent Dispositions; as also, for the same reason it may be urg'd, that where such personal Rights are granted meerly to defraud the Fisk, they would be null, though con∣firmed as said is; for else a man being to commit the Crime of Trea∣son, might purposely dispone his Moveables to prejudge the Fisk.

Nota, That such Moveable Rights Confirmed as said is, will only be a ground for diligence against the forefaulted persons Moveables, even as if the saids Moveables had fallen to the King by single Escheat, but they will not be a ground of diligence against a forefaulted persons real Estate.

Nota, That as Gifts of forefaulted Lands can only be past un∣der the great Seal, so the forefaulted persons Moveables should be regularly Gifted under the Privy Seal, being as to the King, the same way of Transmission, that an Assignation is to a privat party, but in the Earl of Argil's case, it was found that the Moveables of the forefaulted person might be likewise transmitted under the Great Seals.

THough by this Act the Superiors forefaulture does not pre∣judge the Vassals who are innocent,* 1.22 yet this Act is expres∣ly abrogated by the 201 Act 14 Par. Ja. 6. and by our Law the Vassals Rights are null, except they be Confirmed, or unless he has originally consented to them, or unless the Feus be set in the Terms of the Act 71 Par. 14 Ja. 2.

From this Act it may be urg'd, that since by a special Law, Vassals of persons forefaulted in this Parliament, are secured, notwithstan∣ding of the forefaulting of their Superiors; yet therefore regulariter the Sub-vassals Right falls to the King by the forefaulture of his Su∣perior, or his own forefaulture, and that not as Caduciary for then it would only fall to him with the burden of all Rights granted by the Vassal: But it falls to the King qua superior, so that he is not obliged to acknowledge any Rights, except they be Confirmed by himself; this was debated in the case of General Dalʒel contra Lady Cald∣wall.

Nota, The said 201 Act 14 Par. Ja. 6. appoints this Act to be delet out of the Records of Parliament, and this has been design'd oft-times to pre∣vent our taking abrogated Acts, for Acts in force, but yet they are still Printed; and some think this necessary, because men argue oft from abrogated Acts, as from this Act in the said case of the Lady Cald∣wal.

* 1.23ALL Monks with us were called Friers from the French word, Frere, which signifies a Brother. The Religious Women were called, Nunnes, from the Latin word, Nonna, which signifies a sa∣cred Virgin.

THe Lands holding of Friers or Nuns, are by this Act de∣clared to hold of the King, and all the Lands of Monks and Nuns are by the 29 Act Par. 11 Ja. 6. annexed to the Crown, quoad their Temporality, and though thereafter many of these Be∣nefices were erected in favours of Laick persons; Yet by the 14 Act Par. 1 Ch. 1. The Superiority of all Lands belonging to Abbacies, Priories, and other Benefices belong to the King.

THis Act is Explain'd in the Act 36. and is drawn back to all Rights made even prior to this Act,* 1.24 by the 65 Act 5 Par. Ja. 6. which is a singular Instance of drawing back Acts prior to the dates.

THese Acts are Explain'd in the Observations upon the third Parliament of Queen Mary.* 1.25

King JAMES the sixth, Parl. 3.

* 1.26THese Acts of this Parliament are Explain'd in my Criminal Treatise, tit. Heresie.

Nota, That by the Act 45, Arch-bishops, &c. were to be punished, being found negligent by the General As∣sembly of the Kirk, the Bishops before the Year 1606. being but Titular Bishops, and subject to the General Assembly, and were to be deprived by them, as is clear also by the 46 Act of this Par∣liament.

By the 46 Act it is also observable that all the Church-men were then only to give their Oath, for acknowledging and recognoscing His Majesty and His Authority; the Oath of Supremacy having come in only by the 1 Act Par. 18 Ja. 6. By this Act also, non-residence is declared unlawful, and is yet a cause of Deprivation, except it be dispensed with, the habilis modus whereof is by a Letter from the King.

BY the 72 Act Par. 9 Q. Mary, the Minister was to have the Parson or Vicars Manse, or so much thereof as should be sufficient for him;* 1.27 and no Kirk mans Manse or Gleib could be feu'd, yet an Heretor to whom a Vicars Gleib was feu'd a year before that Act, was allow'd repetition, Feb. 12. 1635.

Nota. This Decision is otherwise related by mistake in the observ. on the said Act.

The Manse comes from the Latin Word, Manere, vid. Seldens History of Tithes, pag. 52. By it we understand the Ministers Dwelling-house, and if the Parson or Vicar had a Dwelling-house or Manse, it belonged to the Minister, but if there was none of these, no other House could be design'd, though it stood within the precincts of an Abbacy, February 11 1631. Minister of Inner∣keithing contra John Keir. If there be no such Parson or Vi∣cars Manse, the Heretors must build one by the 31 Act of Parliament 1644. but thereafter by the 21 Act 3 Sess. Par. 1 Ch. 2. The value is declar'd to be from 500 merks to 1000 pounds, so that the Minister may build a Manse to himself, and he or his Executors will get repetition of what he bestows in building, not exceeding 1000 pounds; but if the Minister build only to the va∣lue of 500 merks, he will not have action against the Parochion∣ers for more, though not exceeding 1000 pounds, upon pretence that he might have built to that value, January 8. 1670. Charters contra the Parochioners of Curry: Where it was also found, that the Reparation or Building of the Manse, affects not singular Suc∣cessors, and is not debitum sundi.

By that Act likewise it was found, that since Manses are ordain∣ed to be built by the Heretors, that therefore Liferenters are not lyable, which Decision may be very dangerous to Ministers, since it may oftimes disappoint, or at least for many Years suspend their Relief; as for Instance, if a Father should denude himself of his Estate, in favours of his Son an Infant, reserving only his own Liferent, and it may be doubted whether such Liferenters per re∣servationem, may not be lookt upon as Heretors in this, as they are in some other cases; and yet though Liferenters were not bound to build Manses, yet they were found lyable to repair them, these being but minores impensae, which required to be presently done; but neither Heretors nor Liferenters will be oblig'd to pay what is to be bestow'd upon Building or Repairing, nor to stent them∣selves for that effect, if they have materials of their own. It has been also found that Manses are to be built and repaired where they were burnt or wasted casu fortuito.

A Gleib is that portion of Land that is to belong to the Mini∣ster, Gleba terrae, or a little piece Land, and is by this Act to com∣prehend four Aikers of arable Land, or 16 soums Grass, where there is no arable Land, Act 7 Par. 18 Ja. 6. These four Aikers are to be design'd out of Lands formerly belonging to the Parson or Vi∣car; and if there be none such, they are to be design'd out of Abbots, Prioresses, Bishop, Friers, or any other Kirk-land lying within the Bounds of the Paroch, Act 161 Par. 13 Ja. 6. which

order is exactly to be observed in the way set down by this Act, as Dury observes, July 13 1636. Halyburton contra Paterson; yet I find that Bishops Lands were design'd before Abbots Lands, because that Bishops have greater interest in the Cure; and albeit it may seem that the designing the most ewest or nearest Lands to the Manse for a Gleib be in favours of the Minister, and for his ease; yet the Lordsfound a Designation null at the in∣stance of the Heretor, whose Lands were designed, because there were other Lands nearer to the Manse, for else any Heretors Lands within the Paroch might be designed for a Manse out of prejudice.

By the 116 Act 12 Par. Ja. 6. It is ordained, that Ministers who are provided to Churchs, where there was no Parson or Vicar for∣merly, such as Cathedral Kirks, or Abbacies, shall have a suffici∣ent Manse within the precinct of the Cathedral or Abbay, except the Heretors of the precinct provide them to as good a Manse, and as commodious.

These Designations are to be expede according to this Act, by the Arch-bishop, Bishop, Super-intendent, or Commissioner who shall give their Testimonial, how he and two of the Parochioners have design'd such four Aikers, presently possest by such a man; upon which Designation, with a Supplication from the Minister, the Lords of Session are ordain'd to grant Letters of Horning upon ten days, which is renew'd by the 21 Act 3 Sess. 1 Par. Ch. 2. By which it is also appointed, that such Designations of Manses shall be by such Ministers as the Bishop shall appoint, and two or three of the discreetest Heretors.

* 1.28BY this Act benefic'd persons being year and day at the Horn lose their Benefices, which fall under their Liferent-Escheat; but it may be doubted, whether these Benefices should fall to the Patrons of the Benefices, as other Lands fall to Superiors, to com∣pense their want of a Vassal, especialy seing where Kirks vaik through the Ordinars not accepting of a presentation, the vacand Stipends are declar'd to remain with the Patron; or whether these Benefices ought to belong to Universities, and such as have Right to vacand Stipends? Or whether they ought to belong to His Ma∣jesty, and to be Transmissable immediatly by Gifts in Exchequer, as other Liferenters are? And this last is most conform to our Law.

* 1.29THough it appears by this and other Acts, and by our pro∣gresses of Writs, that the Pope us'd to Confirm Rights made of Church Lands; yet that was never necessary by any positive Law with us, and Feus even of Kirk-lands, prior to the Reforma∣tion, were and are valid, without any such Confirmation; but be∣cause about the time of the Reformation, which was the 8. of March 1558. Benefic'd persons did dilapidat their Benefices; There∣fore

by the 7 Act Par. 1584. It was declar'd that all Feus not Confirmed by the King or Pope before that time were null.

AT this time there were two opposit Parliaments sitting, one for the King at Striviling or Stirling by the Earl of ••ennox;* 1.30 as Re∣gent, and another for the Queen at Edinburgh, and therefore this Act ratifies all that was done by the Parliament for the King, and annuls all that was done by the other, vide Melvils Memoirs pag. 113. vid. observ. on 100 Act 7 Par. Ja. 6.

BY this Act Excommunicat persons should be Denunc'd Rebels at the Instance of the Kings Advocat,* 1.31 or Procurators for the Kirk; but now the Kings Advocat is Procurator for the Kirk, af∣ter this Denunciation their Liferent-Escheat falls to the King, and all simulat Gifts of them are null, Act 197 Par. 14 Ja. 6. and the Excommunicat persons and their Tennents are lyable for the Rents in solidum, but the payment of the one frees the other; Nor will the Defence of fructus percepti & consumpti, for the maintaining of their lives, defend the excommunicat person, as to bygones, the reason whereof is, not because if this could defend quoad bygones, it should defend quoad the future, and so the Act of Parliament would be evacuat, as is alleadg'd in Dury, June 26. 1629. But the true reason is because the excommunicat person cannot be bonâ fide possessor, since he is so frequently cited.

BY this Act the Arch-Bishop or Bishop may appoint persons for Taxing the Parochioners, for repairing of Churches,* 1.32 if the Parochioners Elected to Tax, refuse, upon which Act the Lords are ordain'd to grant Letters of Horning, which is extended to the Re∣pairing of Kirk-yard-dykes, by the 232 Act 15 Par. Ja. 6. But it may seem reasonable that the Patron should repair the Church, since the care of the Edifice belongs to him, & ejus est incommodum cujus est commodum, yet our Law burdens not the Patron, But the Parochioners because they get the advantage in it of the Word and Sacraments; for which reason also the Canon Law burdened them in the last place, if there were not a fund for that effect, or if fructus residui ex beneficio, were not sufficient, vid. Paul. de citad. de jur. patr. art. 5. But for this reason, all who are Parochion∣ers should be lyable to repair; and yet the Heretors are only lyable, and it would seem that these Heretors should be first lyable, who have bought in their own Teinds, since they have most advantage by the Benefice, the Rents of which Benefice were by the Canon Law burdened with these reparations.

By this Act also, if any intromet with the Stones or Timber of a demolish'd Church, the Bishops Decreet is equivalent to a Decreet of the Lords of Session, but this is in Desuetude.

By this Act also the parsons of the paroch should furnish Bread and Wine to the Communion, how oft the same shall be admini∣strated, and it seems that by the word, Parson, should be mean'd either Rector Ecclesiae, for he is called the Parson, or all the persons who are Parochioners, and which seems reasonable, because they

partake of the Sacraments; and yet Heretors are only lyable, 2. It is clear from these word, That what is due for Communion Elements should only be due when the Communion is given, but yet Heretors are lyable yearly, though the Communion be not given, but it should be then given to the poor in that case, and not to the Minister.

King James the sixth, Parliament 4.

* 1.33FRom the Narrative of this Act it is observable that the Refor∣mation from Popery first authorized in Parliament in August 1560▪ which observation may conduce to clear many things, both in relation to dates and others which depend upon the Reformation.

By the Canon Law there could be no Divorce upon Separation, because Marriage is a Sacrament, and so could not be dissolved but by death; but all Protestants allow a Divorce in case of wilful di∣version, and therefore by this Act if persons absent themselves, and will not cohabite for four years, they may be cited to adhere, and if Divorce follow, the Wife loses her Tocher, & donationes propter nuptias, and if the Husband be the person who diverts the Wife, will by the same parity of reason get her Conjunct-see, and every thing else to which she could have had right ••f her Husband had died, 21 March, 1637. Lady Manderstoun contra Rentoun; and by our Law the party injured has liberty to marry after such Divorces. The Canon Law requires ten years diversion, though this Act re∣quires only four years, c. 8. extrav. qui filii, vid. Ritors, de disser, Jur. Civ. & Canon. l. 2. c. 14. but even in that case they grant no Divorcement, but only separationem quoad thorum & mensam: As to the four years prescrived by this Act, it may be doubted whe∣ther they should run from the date of the citation only, or from the time of the withdrawing or desertion, and it would appear that since the Act of Parliament sayes, That if they remain in their malici∣ous obstinacy for the space of four years; therefore the four years should run only from the date of the refusal, either by citation, or at least by being required; and yet the Commissars ordinarly make them run from the date of the withdrawing and desertion simply, though neither cited nor required; and though it would seem by this Act that four years should interveen before the Decreet of Adherence, yet the Commissars will grant a Decreet of Adherence upon a years de∣sertion, or less, if it can be proven to be malicious, or design'd, for they think it is enough that four years run before the Decreet of Divorce.

Since the Act of Parliament requires malicious desertion to pre∣ceed the Divorce, it may be doubted whether Citations at the Peer and Shore of Leith to those that are out of the Countrey, or at the dwelling house to these that are within the Countrey be sufficient, since they may be so cited without being malicious deserters; and it were hard that a man being taken with Pirats or Robbers, or ne∣cessarily absent without knowing of any such Citation, should for

4 years absence lose his Wife; and though in the Romish Church where there is no dissolution of the Marriage this might be suffici∣ent, since upon his return he might recover his own Wife, yet it is most dangerous with us, and though these Citations be sufficient in other cases, yet there is no parity of reason for their being suffici∣ent here, where malice is required, and where the loss is irreparable. It may be also doubted if a Wife remaining in her Husbands House, but refusing him all access to her, may be said to have diverted, and I conceive she may, for all the reasons in the one case conclude against the other.

The form of Process here set down, seems to be borrowed from the Saxon Law, related by S••edvin. ad tit. Instit. de nupt. Par. 4. de divert. & Harprech. ad part. 11. de nupt. num. 131. & seq. and lest this Process may proceed from Collusion, by the Husbands being desirous to divert upon design to obtain a Divorce: therefore by our Law the Pursuer is obliged to swear that there is no such Collusion.

In place of Letters in the four Forms mentioned in this Act, Letters of Horning are now summarly granted on all Commissars Decreets, Act 7. Par. 21. Ja. 6. as also on the Decreets of Sheriffs, Stewards A••ts, Bailies, &c. Act 177.13 Par. and Act 10 Par. 18 Ja. 6. for of old Horning being under the Sessions Signet, 〈◊〉〈◊〉 only granted on Decreets of the Lords.

THis Act is in Desuetude,* 1.34 for Salt may now be lawfully trans∣ported, but then we had not enough to serve the Countrey.

BY this Act every Cowper is to put his own mark upon his own Barrel; but by the 141 Act,* 1.35 8 Par. Ja. 6. there are Staples ap∣pointed for Salmond▪ where a Gadge and mark is to be kept.

THis Act relates to the time wherein Grange kept the Castle of Edinburgh for the Queen.* 1.36

King IAMES sixth, Parliament 5.

BY this Act Ministers Gleibs are not to pay Teind,* 1.37 which is extended by the 162 Act Par. 13. Ja. 6. so far that Mini∣sters Gleibs are thereby to be free from all Impositions whatsoever, and it was found the 9 of June, 1676. Burnet contra Gib, that not only Gle••bs of Kirks establish'd by Law were to be free, but even Gleibs of Chappels where there was Divine Service or∣dinarily; and this priviledge of being free from Teinds was to be ex∣tended not only to Ministers Gleibs, whilst they were possess'd by the Ministers themselves, but that even the Gleibs of Vicars were to be free from Teinds, when come in the hands of Laicks, except it could be alleadg'd that within these 40 years bypast these Laicks had payed Teinds for these Gleibs, albeit this Act of Parliament be only conceived personally in favours of Ministers, but not really in favours of Parsons or Vicars Manses, 16 July, 1678. Earl of Queens∣berry contra Dowglass. This Act is conform to the reform'd Churches abroad, vid. Carpz. jus consist.

* 1.38BY this Act the Lords are ordain'd to direct Letters of Horning at the Chancellors and Bishops instances, for charging the havers of Writs belonging to Hospitals summarly to produce them, and the Clerk of the Bills having refused to pass a Bill upon this Act, as being in Desuetude, and as having been at first but tempo∣rary, because it ordains a report to be made betwixt and Pasch next, yet the Lords ordain'd such Letters to be granted, and found the Act neither temporary, nor in Desuetude, January 1667. Ho∣spital of Northberwick.

* 1.39VId. observ. on the 111 Act, 14 Par. Ja. 3. and on the 119 Act, Par. 7 Jam. 6.

* 1.40THis Act is explain'd in the 36 and 39 Acts 2 Par. Ja. 6.

* 1.41THough by this Act it is declared only that in the competition betwixt such as have obtained Confirmations from the King, the last Right first Confirmed shall be preferr'd, yet this holds also in Rights, holden of other Superiors, because if the Right be given to be holden of the Superior, & a me, it is no compleat Right till it be confirmed, and the first compleat right is to be preferr'd.

Nota, From this Act that the Lords of Exchequer ought not to refuse to grant Confirmations, & de praxi, if they refuse, the Kings Vassals protest that their refusal shall not prejudge his right. But I find that where many Creditors were confirmed in one day, the Lords preferr'd them according to their diligence, and there having taken Seasine, and not according to the date of presenting the Signatures, since neither were negligent, nor had used precipitation, for they shun'd to determine that the Exchequer had not preferr'd or brought in all justly, for that were to make the two Courts interfeer, 6 December, 1678. Mill contra Pasoules; But in the competition be∣twixt two Confirmations, the Lords found that the first who had past the Seals was to be preferr'd, and that the preference of the Confirmation was to be judged by the passing the Seals, and not by the date of the Signature, since it is not the Signature, but the Char∣ter that preferrs, because a Charter first past the Seals, though upon a posterior Signature, will be preferr'd as the more compleat dili∣gence, the Seal being in place of the King's Subscription, and con∣sequently the date of the Charter is not still to be looked to, since the Charter bears still the date of the Signature, and the date of the passing of the Seals is proven in our Law by an attestation under the hand of the Keeper of the Seal; for though that attestation may seem to be the testimony of only one Witness, yet it is actus officii, and the Minut-Book is a sufficient check upon his attestation, 26 Febru∣ary, 1680, Clackmannan contra Earl Wigtoun.

It is also observable from this Act that albeit the Keepers of the Seals are discharged to pass double Confirmations of Rights of the same Lands, yet de praxi the Exchequer and Seals pass very frequent∣ly such double Rights periculo petentis, and though where the ob∣tainer of the first Right cannot instantly exclude the second, as by clearing that the granter was denuded, and so the second Right was null. There may be some pretext for granting such double Rights, periculo petentis, the Exchequer not being Judges competent to the competi∣tion of double Rights, yet where the first can clearly and instantly exclude the second, there is no reason for passing the second, for by passing such double Rights, the first is put to the necessity of a Reduction, since no Right once passed under the Great Seal can be annulled by way of exception, but only by way of reduction; and since the second right, though null, may be the foundation of a Prescription, and will establish a full right in the obtainer, if he continue 40 years in possession.

THis Act prohibiting Flesh to be transported in Ships, except in so far as is necessary for Victualing the Ships,* 1.42 is now in De∣suetude.

King IAMES the sixth, Parliament 6.

IT is observable that in this Act is said, that Our Soveraign Lord has declared and granted Jurisdiction to the Kirk,* 1.43 which consists in the Preaching of the Word, the correction of Manners, and the Administration of Sacraments, which inferrs that Ecclesiasticks have no temporal Jurisdiction save from the King, which the Ca∣nons have also acknowledged, as shall be clear'd in the Act concer∣ning the Supremacy: But they are acknowledg'd to have had an Ecclesiastick Jurisdiction, for the Act bears, Has declared, and this Ecclesiastick Jurisdiction is declar'd to consist in Preaching, Cor∣rection of Manners, and Administration of Sacraments.

THis Act discharges Gaming and Drinking in Ale-houses on the Sabbath, and is considered in the Act 83. Par. 6. Ja. 4.* 1.44

THough such young Noblemen or Gentlemen as go abroad,* 1.45 need not now Licences from the Council, nor to make application to the Bishop or Superintendent within 40 dayes after their return, yet if the Council suspect that they are like to change their Religion, they use to cite the Parents, and to force them to bring home their Chil∣dren, or else to Imprison or Fine them as they see cause. This Act was renewed by a Proclamation of Council, January, 1679.

BY this Act the Labourer is to require him who has right to the Teinds, to come and Teind within 8 dayes after the Shearing,* 1.46

by making premonition on three Sabbath dayes after the Shearing, which is by the 48 Act, Par. 11. Ja. 6. restricted to two Sabbaths; and thereafter by the 5 Act, Par. 21. Ja. 6. It is appointed that the Teinding beat three several times, viz. the In-field at one time, the Bear at another time, and the Out-field Corn at a third time, and that 8 dayes interveen after each compleat Shearing; but all this is innovated by the form set down very fully, 9 Act, Par. 22. Ja. 6. Which last Act is now in observance, and being fully consi∣der'd needs no further explication.

* 1.47VId. crim. pract. tit. Idle Beggers, and observ. on the 16 Act 3 Sess 1 Par. Ch. 2. Where this Act is Ratifi'd and enlarg'd; In this Act excellent Overtures are set down for punishment of Va∣gabounds, and these who flee from their Masters Service, who by this Act are appointed to be burnt in the Ear, and Scourg'd for the first Fault, and to suffer Death for the second; so far can the repeating of a Crime highten its punishment, even in mean Crimes: analogical to this Act is the Tit. ff. de Fugitivis, where likewise ma∣ny excellent Overtures are propos'd.

* 1.48ALbeit by this Act, all the Hornings are to be Registrated in the Sheriff-Books of the Shire; where the Rebel lives: Yet by the 265 Act 15 Par. Ja. 6. In case the Sheriff refuse to Registrat the same, it is sufficient that they be Registrated in the general Register; but if the Horning be for a Criminal Cause, it must be Registrated in the Books of Adjournal, Act 140 Par. 8 Ja. 6.

Observ. 2^o. That Horning against Witnesses need not be Re∣gistrated at all, nor can Witnesses Escheats fall upon such Denuncia∣tions, because it were hard to put the pursuer to so much expenses, or to make an Escheat fall for a negligent Contumacy.

Observ. 3^o. That Denunciations at the Mercat Cross of the Shire where the Rebel Dwells, should only debar Rebels, ab agendo, and not Denunciations at the Mercat Cross of Edinburgh, as was found January 24. 1674. Blair contra Blair; and even these Defenders who are Denunced at the head Burgh of the Shire, can∣not be debarr'd from proponing that which requires their person∣al presence, nor are their Creditors or Assigneys debar'd from pur∣suing.

Observ. 4^o. Though by this Act the Thesaurer has power to in∣tromet with the Rebels Goods, and may raise Letters for that ef∣fect, which were call'd Letters of Intromission; yet now Escheats must be Gifted, and the Donatar must raise Summons of general Declarator thereupon, wherein it must be try'd, if the Rebel was lawfully Denunc'd; and after general Declarator, he must have a Decreet of special Declarator, which is in effect only a Decreet for payment, though it be abusively call'd a special Declarator; and the former Letters of Intromission are justly found not to be legal now.

The affixing a Roll of the Rebels Names here mentioned, is in Desuetude, except as to Fanaticks, and these who pay not the Kings publick Dues.

Some doubts concerning this Act are Explain'd in the Act 142 Par. 8 Ja. 6.

THis Act is Explain'd, Crim. pract. tit. Libels.* 1.49

BY this Act the pains of breaking Law-burrows, is to be divid∣ed equally betwixt the King and the Party injur'd;* 1.50 and the reason of this is, because the King is injur'd by the breaking of the Law-burrows; The Charge of Law-burrows being in His Majesties Name; and though ordinarly the Party Charged finds Caution of Law-burrows; yet if after the Charge any prejudice be done, the party Charged is lyable, because the Charge is con∣temn'd, July 8. 1628. Semple contra Cuninghame.

The civil Action whereby this breach of Law-burrows is pursu'd, is call'd An Action of Contravention, and must because of this Act of Parliament, be rais'd at the Kings Advocat's instance, as well as at the instance of the party injur'd, and the pursuers Title is the Charge, if no Caution be found, or the Extract of the Bond of Cautionry, if Caution be found; the ordinary Deeds whereby Contravention is infer'd, are beating or stricking the party to whom the Lawburrows is found, or his Servants, ex∣cept the Servants or Tennents were beat upon a special account, no ways relating to the Master; which speciality must be proven, or else its presum'd to have been on the Masters account; and for the same reason it is, that though the stile of Letters of Law-burrows bear, That the Complainer, his Men, Tennents and Ser∣vants, &c. shall be Skaithless in their persons, Lands, Heretages, Goods and Gear; Yet the taking of two Horse from the pursuers Tennents, was not sustained to be a Contravention, because that was not done on the Masters account, nor was the Tennent him∣self pursuer, January 28. 1632. Grant contra Grant. Nor was for the same cause, the breaking up the Tennents House, and taking some Goods out of his Chest, found a Contravention, February 9. 1633. Lindsay contra Denniston. But since it was not a Contra∣vention, because the Master was not concerned in the Injury as these Decisions bear, I see not how the Tennents concourse could have altered the case, quoad the Contravention, though in both cases the Tennent may pursue damnage and interest.

All Lawyers are clear, that there must be clear grounds of In∣jury alleadg'd, and therefore feeding bestial upon controverted Lands, is not sufficient, December 20. 1592. But in mutual Con∣traventions upon that head; The Lords allow'd both parties to turn their Libel in a Molestation, and granted Commission to Exa∣mine

Witnesses hinc inde, January 24. 1663. Rouchlay contra Wood. Nor would the Lords find that pasturing upon waste High-land-ground, should infer contravention, except it had been done by the Masters Command, or frequent herding to his knowledge, July 8. 1664. Earl of Airly contra M^cintosh. But yet if Deeds of Violence be done, even upon debateable Lands, that will infer Contravention, such as the hoching of Oxen.

This animus injuriandi is so necessary, that Deeds done by drun∣ken-men, are by many Lawyers thought not to infer a Contra∣vention, Christin. Tit. 4. Art. 8. and the adulterating the pursu∣ers Wife, will not infer a Contravention, because this is not done animo injuriandi, but animo libidinoso Christin. Art. 7. He likewise thinks, that threatning real injuries is sufficient, and threat∣ning is a great breach of the Peace, especially when it is by a man who uses minas prosequi, but verbal injuries, per se, are not thought sufficient by Lawyers, nor have we any Decision sustaining a Contravention on that head.

Since by this Act the King and the Party have different inte∣rests, therefore Imprisonment or paying of a Fine to the King by prior Sentence, will not exclude a pursuit of Contravention at the parties instance, March 20. 1623. Futhie contra Carmichael, and January penult, 1622. Johnston contra Laird of Westnisbit. And certainly that Decision related by Hope tit. contravention Forrest contra Turnbul; Where it was found that the Kings Advocat could not insist alone in a Contravention, if the party injur'd discharged the Deed, though after the intenting of the Cause, is an illegal Decision; for seing the King is injur'd crimine fractae pacis, and that by this Act the King has right to the half of the penalty, and had formerly right to all by the 5 Act Par. 1 Ja. 3. The party cannot Discharge the Kings part. Contravention is a penal action, even at the privat parties instance; and therefore titulus coloratus, will defend against it, and thus a Contravention being libelled, as in∣fer'd from the casting of a Ditch, whereby the pursuers Land was overflow'd. The Lords found that a consent from the pursuers Fa∣ther, though he was but Liferenter, did defend against that acti∣on, January last 1633. L. Weyms contra L. Gairntilly, Without prejudice to pursue an Action of Damnage and Interest; to which the Lords turned this Libel, without necessity of a new Pro∣cess. And this action is likewise elided for the same reason, by sub∣sequent Dissimulation; and therefore a pursuit of Contravention, founded upon cutting of Trees in the pursuers Wood, was elided by the same pursuers granting Licence thereafter to the same De∣fenders to cut in the same Wood; which posterior Licence the Lords found did infer a presumptive Remission, January 11. 1633. Denniston contra Lindsay. Nor is this Contravention infer'd by Injuries, done upon provocation or self-defence, but though pro∣vocation seems to be good against the provocker, yet it seems not to be good against the King; and it may be doubted whether

the penalties of the Acts of Parliament may be sought, by and at∣tour the damnage and interest, or if the damnage is to be a part of the penalty.

HOpe observes from the Narrative of this Act,* 1.51 that as only Landed men can be Judges in Perambulations, so Landed men ought only to be received Witnesses in Heretable Debates; but this Observation holds not in our Practique, which allows any ha∣bile Witnesses in perambulations, and all other Heretable De∣bates.

BY this Act all Heretable Obligations, or Writs of importance,* 1.52 are to be subscriv'd, and seal'd before two famous Witnesses, if the parties can Write, or by two famous Notars, before four famous Witnesses, if they cannot write.

Observ. 1^o. That Sealing is not necessary, but Subscription is sufficient in parties, and is not necessary in witnesses by this Act, though it be requisit by the 5 Act 3 Par. Ch. 2. even in Witnesses also; and though the Sealing be only remitted in Papers to be Registrated by the 4 Act 9 Par. Ja. 6. Yet it is not necessary in any Writ by our present Custom.

Observ. 2^o. That in our practice; all Writs exceeding an hun∣dred pounds, are Interpreted to be Writs of importance, and so to need Witnesses, January ult, 1623. But if any sum be to be annually pay'd, that Writ whereby it is to be pay'd, requires Witnesses, though never so small, because yearly Prestations may arise to a considerable sum, July 4. 1632. and though sums above 100 pounds, require Writ; Yet Intromission with Victual or any thing else, probable by witnesses, as all other things con∣sisting in facto are; as also, intromission with uncoyn'd Money or Silver in mass, is probable by Witnesses, though exceeding 100 pounds: But promises & nuda emissio verborum, though for less sums than 100 pounds, are only probable by Writ, because By standers may mistake the position and force of Words, January 19. 1672. Douchar con. Brown.

Observ. 3^o. This Act is only to be extended to such things as require Writ, ex sua natura; and to which Writ uses to be ad∣hibit for Merchant-bargains made in Mercats, do not require W••••t, and so are probable by Witnesses; for men use not, nor cannot adhibit Writ in such cases; nor are Witnesses requisit in Dis∣charges granted to Tennents by the Masters, because of their Ru∣sticity, and the smalness of the sums: Nor are Witnesses requi∣sit in Contracts of Marriage, upon which marriage has followed, nam notorietas facti habetur pro testibus, July 1. 1662. Breidie con∣tra Breidie. But it may be doubted whether this holds in Stran∣gers, such as are third parties; and I think they are not oblig'd to pay the Tocher, though it certainly holds in the Man and Wife themselves who Contract; and though it hold not in third par∣ties, who are meer Strangers; yet it should hold in the Father, when he obligeth himself to pay the Tocher, where there is a tri∣partite

Contract subscriv'd by many parties, they are in place of Witnesses to one another, all parties having subscriv'd, July 19. 1676. Forret contra Veitch. And a Writ having the Substantials filled up with the Granters own hand, is equivalent to its being Subscriv'd by Witnesses, January 23. 1675. Vans contra Mal∣loch.

Observ. 4^o. Though the sum exceed an hundred pounds; yet if the pursuer restrict his pursuit to an hundred pounds, it is probable by VVitnesses, July 7. 1629. Wallace con. Muir.

VVhere the parties cannot write, two Notars and four VVit∣nesses are required by this Act; But yet a Merchants mark is su∣stained, if it can be prov'd, that he us'd to subscrive so, Februa∣ry 1. 1669. Brown contra Johnston. But this is only sustain'd amongst Merchants, and to facilitat Commerce: But it seems that in Law, no such mark should be sustain'd, except where the writ has witnesses also. Subscription also by the Initial Letters of the Subscrivers Name, is sustain'd, if the Subscrivers be prov'd to have still Subscrived so, these Instrumentary VVitnesses are pre∣sum'd to have been chosen by consent, and therefore Sons, Ser∣vants, &c. may be VVitnesses; and it may be doubted if VVo∣men may be VVitnesses in VVrits; but it is still sit to choose dis∣interrested VVitnesses, for if the Granters own Relations be wit∣nesses, and one of two of them deny his Subscription, the writ will be reduc'd as null, though not improven as false, as was found in Nimmo's case.

These VVitnesses are by this Act to be design'd by their spe∣cial Dwelling, or some evident token, by which they may be known, as to which.

Observ. 1^o. That though Designation by the Dwelling-place, be declar'd sufficient by this Act, yet if that Designation be too gene∣ral, as that the witness is In-dweller in Edinburgh, and that there be many of that Name there: or the person cannot be known by that Designation. The Lords will ordain them to be more parti∣cularly condescended on, even by an Assigney, who may pretend that he is not oblig'd to know who the witnesses were, but that it was sufficient for him to see that the Bond had witnesses, but yet that the Witness was Servitor to the Earl of Southesk, though the Earl had more Servants of that Name, February 7. 1672.

Observ. 2. That though the Act say that the Writ shall be null, if the Witnesses be not design'd in the Writ; yet the Lords will allow the Pursuer to design the Witnesses if they be insert, though the Witnesses so designed be dead, and many years have interveen∣ed since the Writing of the Paper, but in that case they will ordain the designation to be astructed per comparationem literarum, and an Oath in Supplement, 15 July, 1664. Colvil contra the Executors of the Lord Colvil; but if the Writ mention no Witnesses, the Lords will not allow the Pursuer to condescend who were Witnesses, and to design these Witnesses, 24 Jan. 1668. Magistrats of contra the Earl of Finlator. All which holds only in cases arising from Writs prior to the Act, 5 Par. 3. Ch. 2. By which Act Witnes∣ses must be subscriving and design'd, else the Writ is null.

I find this whole Act was verbatim made in France at Moulins, Anno 1556. and has been brought in here very shortly after, viz. 1579. There is a learned Commentary writ upon it by Bosellus, Borderius, which may be very useful in our practice. I find also that by the Edicts in Flanders, nothing can be proven by Witnesses above 300 pounds, vid. Stockman. Decis. 120.

BY this Act, Spuilʒies, Ejections,* 1.53 and others of that nature pre∣scrive in 3 years.

O••s. 1. That though the action of Spuilʒie and Ejection prescrive quoad the specialities indulged by the Law to these actions, which are, that violent profits will be granted, and that if the Pursuer prove that the Spuilʒie or Ejection were committed, he may tax his own dam∣mages per juramentum in litem, yet if the Pursuer restrict his Action to wrongous intromission, or re-possession, he may pursue for the same at any time within 40 years, 16 March,, 1627. Inglis contra Kirkwood.

Observ. 2. That from these words in the Act, And others of the like nature, The Lords have found that an Action of Intrusion prescrives within 3 years, 2 February, 1610. As also, that an Action for demolishing of a Miln, or an Action intented for the dammage and interest sustained in ryving out a common Moor, and generally all such Actions as arise from violence, and in∣ferr upon that account extraordinary dammages, do prescrive with∣in 3 years, quoad the extraordiness of the dammage.

Observ. 3. That nothing but a formal pursuit of Spuilʒie inter∣rupts this prescription, and therefore an action of oppression and de∣predation intented before the Justices, was not found sufficient to interrupt this prescription, though that was a more exuberant conclu∣sion, and so included Spuilʒie as a lesser, and the Justices are Judges ordinar also; and by this Act it is enough to pursue before the Judge ordinar, 8 February, 1676. Master of Rae contra Dum∣beath.

Actions of removing prescrive so (if not pursued within three years) that there must be a new Warning before any re∣moving can be intented,* 1.54 and the Lords have found that these three years are to be computed from the time to which the Warning is made, but not from the date of the Warning.

BY this Act all actions for House-mails,* 1.55 Mens ordinar Servants Fees, Merchant Compts, and other like debts prescrive in three years.

Observ. 1· That these actions are not absolutely extinguished by the prescription, but after three years they become probable only by Writ, or Oath of the Defender, whereas if they had been pur∣sued within three years, the debt was probable by Witnesses, and this Act is founded as I think upon the presumption that men would not suffer such debts to ly over for longer than three years, without

taking an obligation for them in Writ, and the presumption lyes for their being yearly pay'd, and that which was praesumptio hominis, is after the current of three years made here praesumptio juris & de jure & lex statuit super prasumpto.

Observ. 2. These words, Or other the like debts, that are not foun∣ded upon written obligations are dangerous, as all such general clauses are, which make the people unsecure, and the Judges Ar∣bitrary; and though one would think that Maills and Duties of Lands ought to prescrive as soon as any of these, since it is not pre∣sumeable that these would be suffer'd to be unpay'd, yet it was found they did not prescrive in three years, 20 January, 1627. Ross contra Fleming.

By this Act House-mails, &c. prescrive, if they be not pursu'd within 3 years, and therefore the Libel for such debts is not rele∣vant, except it be expresly Libell'd that such duties were owing, and are yet resting unpayed, and consequently the Tennent may de∣pone that he possest but that he payed, which quality is receivable, and yet if the Tennent depone simply that he possest and forgot to adject the quality, the Lords would not sustain it to be adjected ex intervallo, at the advising of the Cause; or in a Suspension or Re∣duction, unless the Tennent could prove that the Master would not suffer the quality to be receiv'd, or would offer to prove payment by the Masters Oath.

Observ. 3. It may be doubted whether this Act ordaining Merchant Accompts to prescrive in 3 years, doth reach to Compts owing to Strangers, for they seem not oblig'd to know our Law, and this would ruin all Commerce & locus contractus semper attendendus. But it was found that this Act does extend to all Merchant Goods, as well when sold in gross as by retail.

It may be doubted whether these two last Acts run against Mi∣nors, since it is provided expresly that Prescriptions against Spuil∣zies and Ejections shall not run against them, which shows that if this had been design'd in the other Prescriptions, the same Clause had been renew'd, since it was under consideration, and so seems not to have been forgot only, and there seems to be some reason for this, since Minors are prejudg'd by Spuilʒies and Ejections, and so Prescriptions in these should not run against them, but in remo∣vings the hazard is only that a new Warning must be used, and in other the like debts, the only loss is that the debt cannot be prov'd by Witnesses after three years, and so since these prescriptions did little hurt to Minors, it was not necessary to stop their course. It is also observable, that though all these Prescriptions run in 3 years▪ yet if actions be once intented, they stop the prescriptions, and there∣after Spuilʒies, Removings, or Aliments, &c. do not prescrive in less time than 40 years, as all other debts do; and till then vio∣lent profits are due, or the like debts may be prov'd, as if the action had been pursu'd within 3 years, 26 January, 1622. Herring contra Ramsay: As also by our late Decisions, if the Pursuer has continu∣ed to employ a Merchant the currency of that Compt, and trust will preclude the prescription, so that many former years preceed∣ing

the three last may be craved, though this Act ordains all Mer∣chant Compts to prescrive within that time, but if a Bond be ta∣ken for these posterior years, it is thought that cannot be called a current Compt, and it may be debated whether in Law one or two Articles will make a current Compt, and if it do, there may be many wayes taken to elude this Act, vid. 16 De∣cember, 1675. Somer••el contra the Executors of Muirhead. This currency extends to Brewers Compts of furnishing, 13 November, 1677. Wilson contra Ferguson▪ (Vid. Sand. lib▪ 5. Decis. Tit. 6.) Though it was alleadg'd that albeit it should hold in Merchant Compts where there are Discharges taken, and where a Compt Book adminiculats the recept, yet it ought not to be consider'd in furnishing of Ale, where neither of these are observ'd; and yet this currency was not respected in Servants Fee••, for these same reasons, and because a Servants Fee is alter'd at the Masters discretion, 12 February, 1680. Ross contra Mr. Salton.

VId. Crim. Obs. Tit. Forestallers, and Tit. 32.* 1.56

IT may be doubted whether this Act that gives power to the Sheriffs and other Judges, to throw down Cruives and Yairs,* 1.57 ought to be extended to Dykes built over waters, or a part of the water, for making a Dam to a Miln.

2^o. VVhether Sheriffs or Lords of Regality, &c. may exe∣cute this Commission for their own advantage, and where they themselves are the parties grieved, since that were sibi jus dic••re, and they would probably be partial, whereas they may get others to execute the same.

THis Act Discharging exportation of Coals is now in Desue∣tude.* 1.58

THis Act Fining such as propone unjust exceptions, or lose the Pley within Burgh, for the use of the poor,* 1.59 is con∣form to that Title in the Civil Law, instit. de panis temere litigan∣tium; For there can be nothing so absurd and unjust, as that men should not at least have their true expenses upon Oath▪ where∣as we use to modifie little or nothing, even where there is not the least colour for a pursuit, or defence, and this I think a great iniquity in all Judges who are guilty of it. Vid. instit. de paen▪ temere litigantium.

* 1.60BY this Act the Lords of Session are ordain'd to distribute Ju∣stice without respect to any privat writing impetrat from His Majesty, and by this His Majesty is freed from importunity, and his people from unjustice. This was formerly statuted by King David 2. cap. 18. & cap. 41. and by the 2. cap. Statut. 1. Rob. 1. Judges are ordain'd to Judge secundum leges antiquas; and in the Civil Law, per l. 1. & 6. C. si contr. jus vel util. publ. & per novel. 82. cap. 13. and in the Canon Law, cap. 5. de Rescript. This same Law is also in France, and is Learnedly Treated by Rebuff. ad con∣stitut. Reg. tit. de rescript. and Plutarch commends Antiochus for having made a Law in these same terms; but though the former Statute of King David warrands the Judge not to respect that Com∣mand, but to indorse and send back the warrand, and not execute the unjust Command, which is by the 41. cap. of the same Sta∣tutes extended so, that they are not oblig'd to delay Justice upon any such privat warrand; Yet I find by §. 10. cap. 20. of these same Statutes, that the King may Discharge or Prohibite a Judge to proceed in the case of Perambulation, for certain Causes; for reconciling which Statutes, it must be answered, that the King cannot either simpliciter discharge a Perambulation; nor any other Process, but that he may discharge it for weighty Causes, relating to the publick, to which all privat interests must cede even as he may remit Crimes for such causes, though these be of greater con∣sequence, or rather that the King may discharge Perambulations, because the publick Peace is oftimes concerned in these, since there used to be ordinarly great Convocations at such Perambulations; and therefore the Justice General was of old only Judge compe∣tent to Perambulations. Upon March 4. 1553. The Queen Regent appears in the Session and declares that the Lords should proceed to do Justice, notwithstanding of any Letter or Order from her, which is marked in the Books of Sederunt.

Observ. 2. That before this Act the Council us'd frequently to discharge the Lords of Session, to proceed in judging privat Causes, whereof many Examples are to be seen in Hopes larger Practiques, and an instance of it is to be found in the 94 Act of this Parliament; but that Custom is here discharg'd, and as yet the Council uses fre∣quently to discharge the Justices to proceed. And notwithstand∣ing of this Act, I find in the Registers of Council, 1581. King James Revocks in two several Cases, Gifts granted by himself, and Discharges the Lords of Session, to sustain Action upon them.

Observ. 3^o. That the Lords are also allowed to proceed, not only to decide, but also to cause Execute their Sentences, not∣withstanding of such privat writings, Charge or Command, so that the Privy Council cannot Suspend the Lords Sentences, neither by an Act of Council, nor yet by Letters under the Signet; But yet the Privy Council, by vertue of their late Commissions, are allow∣ed,

and do usually grant Protections, whereby the Executions of the Lords Sentences are oftimes stopt.

IN so far as this Act Discharges the Lords of Session to take Buds or Bribes, I have Explain'd the same,* 1.61 crim. pract. pag. 248.

Observ. 1^o. That the Lords are allow'd to reject any person whom the King presents to them to be a Lord, if he be not quali∣fi'd and of good fame; and therefore the Lords us••d when the King presented any person to be a Lord (which was by a Letter direct to the Session, wherein the King did nominat him a Lord) to name some of their number to Examine him. But now the Form of Tryal is more severe, and is set down in his Letter direct by His Majesty in anno 1674. whereby they are immediatly after Pleading to resume the Debate, and to give their Opinion first in a Cause Debated in praesentia, and to sit with the Ordinary in the Outter-house, and to report some Causes there Debated, and to give their own Opinion, with the Reasons thereof.

Observ. 2^o. That by the first Institution of the Session, the Pre∣sident was still an Ecclesiastick person, and of the Dignity of a Pre∣lat, as this Act says; and yet I see no such Article in the first In∣stitution; but however, that is here dispensed with for the fu∣ture; For by the 96 Act 5 Parl. Ja. 5. It is only said, that the Session shall consist of fourteen persons, the one half Spi∣ritual, and the other Temporal, with a President.

BY this Act the Tenor of Letters of Horning,* 1.62 and of the Exe∣cutions thereof, cannot be proven by witnesses; The rea∣son whereof I conceive to be not only, because upon such Let∣ters, mens Escheat and Liferent may fall, and that were of too great Importance to be proven by witnesses, since our Law does not allow any Debt above an hundred pounds to be proven by witnesses; But because witnesses can neither know nor remember the exact Tenor of all the formalities of Executions and Stampings thereof; and so strict are the Lords in the Observation of this Act, that after the Horning and Executions were Registrat, they would not allow the Messenger to add the word, Three Oyesses, in his Executions, though he offered to prove that there were truly three Oyesses, and was content to bide by the Execution so amen∣ded, and that the Executions did bear the words, Thee Oyesses, which wanted but the Letter R, to make the Oyesses▪ three Oyesses, Vid. July 28. 1671. Sir John Keith contra Sir George Johnston; and July 11. 1676. Stev••••son contra Innes.

It may be 〈◊〉〈◊〉 whether the Tenor of such Letter•• may be proven, if there 〈…〉〈…〉 other Adminicles in writ, since even Pa∣pers of the greatest ••mportance may be thus proven by witnesses, and there is no Paper whereof the Tenor may not be proven, nor is the proving of a Tenor here discharged, and if the Letters of

Horning and Executions be Registrat, the Registration takes both off the Suspicion of Falshood, and makes the witnesses who are to Depone know what Solemnities were used; but yet it will never appear by the Registrat Extract, whether the Executions were stamped, and yet this point being sacti, may likewise seem to be probable by witnesses who saw the same stamped. In the case be∣twixt Boyd and Malloch, December 19. 1677. The Lords inclined to think, that even Executions of Hornings being once perfected by writ, and thereafter lost, might have their Tenor proven, though by this Act it would not be originally proven, that Letters of Horning were execute, but they were all clear that this Act was siricti juris, and did not extend to Executions of Comprizings; and therefore they found that the Tenor of such Executions might be proven.

Nota, That a Registrat Extract will not stop a Certification when a Horning and its Executions are call'd for, but the principal must be produc'd.

The Parliament having ordain'd that the witnesses to be used for proving the Tenor of the Executions should be led in the Lords own presence. It may be urg'd argumento ••ujus legis, that witnesses for proving of all Tenors, should be led in praesentia, and which is ve∣ry reasonable, because proving of Tenors is nobilis officij, & altissimae in daginis.

It is likewise observable in this Case, that though the Parlia∣ment made an Act for regulating that point for the future; yet they left the Decision of the Case depending to the Common Law.

IT is fit to know that there being a Staple appointed where all Staple Goods to be brought from Scotland,* 1.63 are declared free of all Custome laid upon Imported Goods, which was a very great fa∣vour. It was therefore very just that no Merchant should have li∣berty to enjoy the priviledges of the said Staple, except he would give his Oath of obedience to the King, and pay his entry in that Incorporation. This and the subsequent Act are still in observance, and the Conservator uses to raise general Letters against such as break the same, by warrand from the Council who are the ordi∣nary Judges in these cases, except where matter of privat right falls in.

King JAMES the sixth, Parliament 7.

BY the old Canons all ordinations were null wherein the per∣sons ordain'd was not intitled to a certain Church,* 1.64 Can-Sanctorum distinct. 70. and thence it was that all Ministeria vaga, wherein a man was ordain'd a Minister, without re∣spect to any particular Church or charge, were discharg'd by our Church, though in the Lateran Council thereafter the ordination was allow'd, but the Bishop who ordain'd was oblig'd to Aliment the Church-man ordain'd, without a suitable living.

By this Act Paroches are to be design'd and circumscrib'd, and every Paroch to have its own Stipend and Pastor, but this quota was not determin'd till the Commission of surrender of Teinds in anno 1627. determin'd that the lowest proportion of a Ministers Stipend should be 8 Chalders of Victual, or 800 Merks, which Act is thereafter Ratified by the 8 Act of the Par. 1633.

It is also provided by this Act, that all Kirks annext to Bishop∣ricks be provided to Ministers, and when the Title of any Prelacy is conferr'd on any, that the said Stipend be reserv'd, the reason whereof was, that the Pope us'd to unite Parochs and Benefices to Bishopricks, upon pretext of the meanness of Bishopricks; and there∣fore in the beginning of the Reformation, when Titular Bishops were made, it was thought just that these Parochs should be again provided with special Ministers.

We call him a Titular who has the Title of a Benefice, & qui est in Titulo, and thus the Seculars who had right to the Teinds due formerly to the Church, are call'd the Titulars of the Teinds, and by the old Canons it is clear; that quaedam beneficia a titulo pendent quaedam a reditu, and these Tithes are in the Ecclesiastick History said to have had their Origine, either ab intitulatione in Codicem & matriculam cujuslibet Ecclesiae un de intitulari dicebantur in Canon. San∣ctorum, distinct. 70. or from the old custome of fixing upon the Altars or Churches the Titles of these who were presented to it: some also think that most Offices in the Church had their denominations from the Offices in the State and Army, there being an Analogy inter militiam armatam & Coelestem, and that there were Titulars allow'd in the one as in the other, vid. Bengaeum de titulis beneficiorum, cap. 1. It is clear by the said Canon. Sanctorum distinct. 70. that singula beneficia certo loco & Ministerio circumscripta erant, as in this Act of Parliament.

BY this Act it is not lawful for any who are provided to Bene∣fices under Prelacies, to dilapidat their Benefices.* 1.65 That is

to say; to set them with diminution of the Rental which they pay∣ed at their entry; and if the Minister contraveen, he is to be de∣prived, and the right to be null. But by the 11 Act, Par. 10 Ja. 6. All Rights made by Prelats with diminution of the Rental, are null, and the conversion of Victual payable to them into Money, be∣low the worth, is by that Act declared a diminution; they are also thereby ordained to find Caution not to dilapidat the Benefices. Like∣as by the Act 3 Par. 18 Ja. 6. the dismembering any part of the Bene∣fice, is declared a species of diminution, and so null. It has been justly doubted whether a Bishop obtaining certification in an im∣probation whereby the Land returned to the Bishoprick might thereafter dispone these Lands by a new right; and it has been de∣cided that this was no dilapidation, if given for the same Rental or Feu Duty they payed before the Act 1606. for such certifications being fr••quent, and the design of these certifications being only to force the Feuers to produce, it were hard to extend them, espe∣cially since the design of these Acts is only to hinder the Bene∣ficed Persons to diminish the Rental and value of them the time of their entry, 27 January, 1676. Bishop of Caithness contra his Vas∣sals. It seems that there is eadem ratio for sustaining Rights by the Successor of that Beneficed Person who obtained the certification, though it may be alledg'd against him that he is oblidg'd to leave the Benefice in as good a condition as he found it: It may be al∣ledg'd that the same reason should sustain Rights made by Beneficed Persons who have obtained Reduction, ob non solutum Canonem.

These Acts are so comprehensive, that the Act 5 Par. 22 Ja. 6, seems unnecessary.

* 1.66BY this Act if any man was rob'd by any of a Clan, he may kill or arrest any of that Clan, if it be found by a legal Tryal that the Clan'd man who did the injury, was harbour'd amongst the Clan, after the Injury was committed; But though this seems as just as Letters of Reprysal are, yet it is now in Desuetude just∣ly, for crimina suos tenent authores.

* 1.67THese two Sumptuary Laws are in Desuetude; But in the Act 113, a case is observable, wherein even the Kings Licence for Transporting wool is not to be respected, but is to be esteemed sur∣reptitious.

* 1.68THis Act seems strangely insert here, since Popery was abolisht long before this Act.

* 1.69VId. observ. on Act 77 Par. 6 Ja. 6.

BY this Act all actions of Deforcement, and breaking of Arrestment,* 1.70 are ordain'd to be summarly discust by the Lords without delay, and therefore they might have been excepted from the order of the Roll set down in the late Act of Regulati∣ons, but yet they are not, for they must abide the Order of the Roll, as other actions, and all the priviledge that they have quoad this, is that, they come in upon six days warning, and need not be continued, that is to say, they have but one Diet.

It is fit to know that these Actions may be pursu'd Civi∣ly or Criminally, and the punishment is Confiscation of Move∣ables, and an arbitrary punishment of their person.

Observ. 1. That the Creditors injur'd by the breaking of the arrestment, are to be prefer'd to the Fisk, the Reasons whereof was, that it seem'd unjust that a Creditor doing Diligence, for his own Debt should be disappointed by his own Diligence, as he would certainly be, if when he had pursu'd, and prevail'd in his Action for breaking of Arrestment, that the parties Escheat falling by this Diligence, the King should be prefer'd to the User of the Diligence, and we see likewise in all such cases the party offend∣ed is still prefer'd to the Fisk; and thus where parties are at the Horn for a Civil Debt, the Donatar of the Escheat is still lyable for the Debt: And in Theft by Act of Parliament, the party injured is prefer'd to the Fisk, but it seems strange, why by this Act the Gift of Escheat is declar'd null if it be not expresly bur∣dened with the Creditors Debt. It might seem more convenient that the Gift should rather have been burdened with it, as in other cases.

Observ. 2. Though by this Act it be declar'd that the Debt shall be pay'd out of the Offenders Moveables, yet that does not hin∣der the party offended to do Diligence against the offenders real Estate, for what sums the Lords shall modifie.

Observ. 3. That Arrestments may be made, not only in the hands of these who owe any thing to the Debitor; But Arrest∣ments may be even made in the Debitors own hands, which though it may seem strange, yet it is done to the effect, that if the Debitor shall be found to have alienated any of his Moveables so arrested after the arrestment is laid on, he may be pursu'd for breaking of Arrestment, and punished conform to this Act.

These Arrestments are used in the same sence, and are execute in the same way that we use them, and all this Subject is very well treated by Christin. Tit. 3. ad leges Mechlin. Argent Tit. des ar∣rest. 8.

BY the Civil Law prodigals (under which Name were com∣prehended all such as manag'd not well their affairs) got* 1.71

Curators only by a Judge; But with us they are Interdicted (and their Interdicters are their Curators) and that either judicially, or by consent, but though it may seem that if a man Interdict him∣self, he cannot Reduce that Interdiction, because he has consent∣ed; Nor yet should Obligations granted by him, be sustained, though he be thereafter found by the Lords to have been provident since the publication did put all in mala fide, to Contract with him; yet Papers granted by him will be sustain'd on that head, and even the Interdiction it self will be Reduc'd as contrary to na∣tural liberty, the Granter being mentis compos & rei suae satis pro∣vidus; And there having no precognition preceeded, December 4. 1623. Gerhan contra Hay. February 1••. 1633. Forbes contra Forbes, which leaves the people in great uncertainty; and it seems much better that voluntar Interdictions were absolutely taken away; Though I believe voluntar Interdictions have been intro∣duc'd amongst us for preservation of ancient Families (for they extend not to secure Moveables, or against personal Execution) and it was found that many weak persons would consent to a vo∣luntar restraint, who would not compear Judicially to be restrain∣ed; and the Letters of Publication passing upon a Bill by De∣liverance of the Lords of Session, seems to be a kind of interpo∣sing of the Authority of a Judge, and so to make the voluntar In∣terdiction a Judicial Interdiction: But the Narrative of this Act confesses that Interdictions upon consent, are beyond the first de∣sign of the Law.

It is observable, 1^o. That Interdictions need not be Intimated to the party Interdicted, or execute against him, December 11. 1622. Seaton contra Elleis. Though Inhibitions must be execute against the person Inhibited; The reason of which difference is, because the person interdicted having consented, there needs no in∣timation be made to him.

Obs. 2^o. The Stile in all such Letters, is ordinarly the rule of all De∣cisions upon them; and yet interdictions were found not to an∣nul moveable Bonds, though the Letters did discharge the grant∣ing such Bonds, and that because Interdictions do naturally strick only against alienation of Heretage; Our Law thinking Moveables of lesser importance, or else because that would stop Commerce, and straiten too much the person Interdicted, July 11. 1634. Bruce contra Forbes. June 20. 1671. Cranford contra Hamilton. And though an inhibition did expresly discharge the granting of Renun∣ciations; Yet a Renunciation of a Wodset was not Reduc'd, as granted after Inhibition, since the Wodset was prior, and so the Re∣nunciation by the person Inhibited, depended upon a prior Obliga∣tion, July 16. 1667. Elleis contra Keith. But by a late Act of Se∣derunt, the 9 of February 1680. It is declar'd, that if the User of an Inhibition shall intimat to the person who has Right to the Re∣version, that the Wodsetter or Annualrenter stands Inhibited at their instance, and shall produce the said Inhibition, duly Regi∣strated at the time when he intimats, that then the Renunciation,

or grant of Redemption, though proceeding upon true payment, shall not be sustained without Citing the Inhibiter.

There were no formal Inhibitions in the Civil Law, but the Doctors speak of a prohibitio alienationis equivalent thereto, M••vius de Arrest. c. 9. num. 25. Arrestari possunt res mo••iles imm••bilium supervacan••um est ar∣restum cum loco moveri non possunt ejus tamen vice quoad illas obtinet pro∣hibitio alienationis quae impetrari solet a judice quoties justus metus est ne alienando debitor deteriorem reddat petitoris causam essicitque ut non ••iat alienatio ipsius rei & num. 29. Judex ob aequitatem talem Inhibi∣tionem decernere debet & num. 32. pro arresto habetur in immobilibus interdictio usus corum, so that Interdictions and Inhibitions are a re∣semblance, if not a species of Arrestments, and I think with Mae∣vius, that the word comes from the Greek 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 placitum incorruptum vel inviolatum, because by all these remedies the obtainers rights are preserv'd inviolable. Inhibitions have their Origine from the Ca∣non Law, whereby if the Secular Judge did interpose in any thing that was Ecclesiastick, the Ecclesiastick Judge did Inhibite him to proceed: And Inhibitions are mentioned, cap. causam Ext. qui sil. sint legit. cap. tuam Ext. de ord. cognit. and with us they were first used in the matter of Teinds in the same sense; but now the word is extended to Letters, whereby the Judge inhibits debitors to sell in prejudice of Creditors.

The publication of Interdictions comes not from the Canon Law, but from the French, where it is necessary that they be published in Paraeciâ & Mercatu, as with us, Vid. Argent. tit. des Mineurs, Art. 492. where he likewise determines, that if a third party knew of the Interdiction, either by being a Witness, or by a privat Inti∣mation made to himself, that any right made to him would be null; with us also the raising of an Inhibition upon a Bond of Interdicti∣on was found equivalent to a publication; the design of the Let∣ters of Publication being only to put the Lieges in malâ side, 10 November, 1676. Stewart contra Hay of Gourdie, where it was like∣wi••e found that the person Interdicted might after Interdiction sell his Land notwithstanding thereof to a third party, if the Bargain was profitable, and that without the consent of the Interdicters: but in that case the Bond of Interdiction was many years kept up, and the Inhibition thereupon was never execute till about the very time the communing begun for sale of the Interdicted persons Lands.

Observ. 3. That albeit all Inhibitions and Interdictions are to be Registrated by this Act within 40 days; yet Inhibitions for Teinds need not to be Registrat, for an Inhibitions for Teinds is but in effect a Summonds or Warrand discharging the Party to lead, but not discharging third Parties to buy, and so needs not be Regi∣strated.

Obs. 4. That though by this Act they are to be null if they be not Registrat in the Sheriffs Register, yet by 264 Act Par. 15 Ja. 6. It is sufficient to Registrat them in the Registers of Stewards, or Lords of Regalitie within which they dwell; and now they may be Re∣gistrat

in the general Register at Edinburgh, which is not here men∣tion'd, because it was not extant the time of this Act and Registra∣tion in the general Register at Edinburgh, is allow'd by the 13 Act Par. 16. Ja, 6.

Observ. 5. Whereas this Act appoints them to be Registrat with∣in 40 days after the publication; it is doubted whether the day whereupon the Letters were execute, or Registrat, is to be numbered amongst the 40 days. But by the late Decisions it is found sufficient that either of these days be free.

Nota, Inhibitions prescrive from the last Execution, but not from the date of the Registration, for Actions might have been intented upon them before Registration, 19 February, 1680. Lutesoot contra Glencorse.

* 1.72THis Act appointing such as are absent from the Convention of Burrows to be fyn'd, and that upon their Acts the Lords of Session grant Letters of Horning, &c. is in observance, except in so far as these Letters are ordain'd to pass at the instance of the Burgh of Edinburgh, for by an unprinted Act of Parliament, 1607. Exe∣cution is allow'd to pass at the instance of the Agent of the Bur∣rows, and the Letters are now still raised in his name.

This Act ordains the Burrows to be cited to their General Con∣vention by a Missive Bill, but this is now done by a Missive Letter, in which the chief Articles on which they are to treat, are exprest, to the end they may consult on them with their Constituents, and these are call'd the Heads of the Missive, but this excludes them not from consulting on new Emergents, which could not have been foreseen.

* 1.73THat part of this Act which discharges the conducting and fraughting any strangers to the Isles, under the pain of tinsel of Life, Lands, or Goods, is in Desuetude.

* 1.74BY this Act Lords of Regality, and Magistrats of Burrows are ap∣pointed to set prices upon all Stuffs, but that part of the Act appointing such Magistrats and Judges as are negligent herein to be punished at Justice Airs, or Courts, is not now observed; and yet that would not defend such as might be pannel'd upon this ac∣count; for the negligence of Judges should not defend them, see∣ing that would invite them to be negligent:

* 1.75THis Act appointing the shooters with Guns to be punished, is not in Desuetude, but is seldome put in execution; and it was thought that Fowlers had prescrived an exemption against it, shooting being their Trade, and their design is not lyable to these suspitions for which the carrying Guns is discharged by this Act, but yet since by a Proclamation 9 June, 1682. Fowlers are discharg∣ed to use Guns, and Setting Dogs, it seems this favourable con∣struction ceases, and the bearing such prohibited Weapons is still

sustained as the aggravation of other Crimes, but is not so sustain'd as that it takes off the strength of a defence that would be otherwise relevant; and thus Nicolson being Pannel'd for Murther, 24 June, 1673. alledg'd that whilst he was strugling his Gun went off, without any accession of his, which defence of his was sustain'd, though it was reply'd, that carrying of Guns was unlawful in a per∣son of his quality, and so versabatur in illicito & exillicito nunquam exculpatio.

THough this Act prohibits the carrying Nolt and Sheep out of the Countrey, yet it is now allowed,* 1.76 and they pay Custome to his Majesty, for though before the Countrey was fully labou∣red and plenished with these, it was fit to keep them in the Countrey. yet now the Countrey would be too much burden'd with them if they were not exported.

BY this Act whosoever renders the King's Castles for Money,* 1.77 are made lyable to repetition, and it is declared that their Heirs shall be lyable, which last is the speciality for which this Act was necessary, since the persons who received the Money were there∣by lyable to restore, and yet before this Act Heirs were not lyable by our Law, since the Crime was extinguished by Death, and thus in Crimine repetundarum repetitio ad Haeredes extendit, l. 2. ff. h. t. na•• turpe lucrum ab Haeredibus extorqueri debet licet crimina morte extin∣guantur, l. 5. ff. de Calum.

THat mixing of Wines is justly by this Act made Criminal,* 1.78 and declared a point of Dittay, and this is by Carpzov, Tit. Fals. and other Lawyers declared to be a species of Falshood, and to be pu∣nishable as such.

King James the sixth, Parliament 8.

BY this Act as by all the Acts of this Parliament, King James endeavoured to curb the insolence of such Ministers as be∣ing dissatisfied with Episcopacy,* 1.79 became very seditious and turbulent; for at this time Spotswood's History tells us, that there being a Convention of Estates holden by King James, the Ministers of Edinburgh, and others desired that nothing might pass concerning the Church, till they were heard; and Mr. Pont, pro∣tested against the Proclamation of these Acts, and by this Act such as decline the Kings Council, and refuse to be judged by them in any matter whatsoever, of whatever degree or Function they be,

are declared guilty of Treason. This Act was occasioned by their frequent declining of the Council, upon pretext that the Council were not Judges competent in prima instantia, to what was preach∣ed by Ministers, and particularly by Mr. Andrew Meldrums De∣clinator; and upon this Act Mr. James Gutherie was Convict of Treason, for declining the King and his Council at Stirling in anno 1651. and was execute therefore in anno 1662.

This Opinion the Presbyterians did borrow from the Romi••h Church, who make Ecclesiastick persons only Judges in the first in∣stance, to what is spoke or written by Church-men, and after they have found them guilty, then they deliver them over brachio secu∣lari; For understanding these Exemptions that are claim'd by Church-men from the Civil Jurisdiction of Laicks; it is fit to know that the King, Deut. chap. 17. vers. 18. is commanded to write the Law, and that David, Solomon, Joash and others did Reform the Priests and others serving at the Altar, and judg'd their misdemea∣nours, in imitation of whom Constantin the Great; Theodosiu, and the first Christian Emperours did regulat the Clergy, and judge Crimes till Arcudius and Honorius, did by an express Law, ordain quoties de religione agitur Episcopos judicare, caeteras vero causas qua ad ordinarios cognitores vel ad usum publici juris pertinent legibus oporlet audiri, which were just marches betwixt the Secular and Civil powers: But Justinian at the instance of Menna, Patriarch of Constantinople, did in the thirteenth year of his Reign, by his 123. Novel. ordain that Church-men should be only conveenable in Ci∣vil Cases before their Bishops; and as to Criminal Cases, that they should be only conveenable before their Bishops in Ecclesias∣tick Crimes, Civil Crimes being cognosced by the Judge as for∣merly.

From these beginnings did arise the vast pretensions of Church-men, whereby they endeavoured to decline the Civil Judge in all Cases, as well Civil as Criminal, in the first Instance, and to that hight that Panor in. c. novit. 13. Decret. Greg. de Judiciis & in c. causam 4. Decret. Greg. qui filii sint legit, asserts that both the Jurisdictions Spiritual and Temporal belongs to the Pope, which was first check'd by Peter Cogniers, the Learn'd Advocat of Philip 4. King of France 1329. It is Declar'd by the 114. Act 12 Par. Ja. 6. That this Act shall not prejudge the Spiritual Office-bearers, as to the power of Excommunication, Collation, or other essential Church-Censures.

* 1.80THis Act declaring that such as shall impugn the Authority of the three Estates, or shall seek or procure the Innovations or Diminution of their Power or Authority, to be Treason, was occasioned by such as endeavoured at that time to exclude Bishops from the Parliament, of which they were, and are the third Estate, and it is observable, both by the Narrative and Statutory part of

this Act, that the designing to exclude one of the three Estates, was the chief design of the Act, though such as impugn the power of the Parliament in general, so far as relates to Cases Spiritual, do likewise commit Treason; and as in the former Act, the contro∣verting of the power of the Council, is declared Treason; so in this Act, the controverting the power of the Parliament, is much more Treasonable; and yet it is controverted, whether the deny∣ing any Branch of the Parliaments power be Treasonable, such as is the quarrelling the Power or Constitution of the Articles; or whether the Subjects may appeal from the Session to the Parlia∣ment? Or if the Parliament has power to Reduce their Sentences past in foro? In all which, the Parliaments Authority may be alleadg'd not to be controverted; but the question seems to reach only to the controverting, its fundamental powers, and if such Cases as these were Treasonable, the people might be discouraged to enquire even into what were otherways lawful; and whatever may be said against such Debaits, when they are meerly factious, and officiously mov'd, and prosecuted by such as have no interest; yet such Debates in Parliament may be alleadg∣ed not Treasonable by the 40 Act 11 Par. Ja. 6. and the votes of Parliament are likewise by this Act declar'd to be free Votes. As to all which, I shall only say that these and such cases, are to be deter∣termin'd by the respective Circumstances; and therefore it is still safer, not to approach too near those Rocks, on which we may splite.

THis Act declares the Convocating all Councils, Conventions or Assemblies, Civil or Ecclesiastick,* 1.81 to be punishable by the pains enacted against such as Convocat the Kings Lieges, and it was occasioned by the unlawful Church-assemblies, holden at that time in opposition to Episcopacy, and by the 4 Act Par. 1 Ch. 2. This Act is Ratified, and all such Convocations declared pu∣nishable, though it be pretended by such as hold them, that they design nothing but the good of King and Kingdom; which De∣claration was there made to condemn the false pretences of our late Rebellion.

IT is observable from this Act, that the being once or twice drunk,* 1.82 is not a sufficient reason for deprivation of a Minister▪ for the Act requires common Drunkenness, and deprives ebriosum sed non ebrium.

Observ. 2^o. That though this Act say, That none residence for the space of four Sabbaths, without the allowance of the Ordinary shall be cause of Deprivation; Yet though there be no express allowance, the None-residence will be no reason of Deprivation, if the reason was sufficient, and the Ordinary could not be had, as the Common Law decides in this case.

None-residence is a Cause of Deprivation by the Canon Law, Decret. Greg. de Praeb. cap. 17. and Franciscus Forrensis has writ a Learn'd Treatise, proving the necessity of Residence to be juris divini.

The Civil Law had formerly required Residence from Church-men, Nov. 6. cap. 2. & 123. cap. 9. except where they had liber∣ty from the Emperour, and thus with us the King only may dis∣pense with None-residence.

Observ. 3^o. That plurality of Benefices having Cure, is a suf∣ficient Reason of Deprivation, which is consonant to cap. adhaec. 13. de Praebend; But exception is made, where one is not able to entertain the Incumbent, vid. Alphons. Hoieda de compa∣tibilitate beneficiorum. The Pope might dispense, so now may the King.

Observ. 4^o. That by this Act Commissioners to be appointed by the King, are to have power of depriving Ministers, which is abro∣gated by the first Act 12 Par. Ja. 6.

* 1.83THough this Act declares that Ministers who exerce, or officiat as Notars, shall be depriv'd, yet it does not expresly annul the Writ; and therefore a Contract of Marriage Subscrived by a Minister in place of a Notar, was the 12 of July 1631. Hassington con, Bartilme Sustained, though it was found that the Ministers was thereby deprivable.

This Act discharging Ministers to be Judges, was made to ex∣clude Mr. Pont, who was then Lord of the Session: for after the Reformation, Ministers came in place of the Ecclesiastick Lords, and though they pretend now that Bishops should not sit in Civil Judicatures, yet they desir'd to be there.

* 1.84BY this Act the uttering of slanderous and un-true Speeches, to the contempt of His Majesty, His Councils Proceedings, and Progenitors, is declar'd punishable, as Leasing-making; and Lea∣sing-making is punished with tinsel of Life and Goods, by the 43 Act Par. 2 Ja. 1. Vid. Act 83 Par. 6 Ja. 5. Vid. etiam tit. Cod. si quis imperatori maledixerit: For such slanderous Speeches, the party is sometimes only Banish'd or Scourg'd, as Tweedie was, March 13. 1612. But one Fleeming was hang'd for saying that he wish'd the King would shoot to dead, May 15. 1615. Spo••eswood Re∣lates that this Act was occasioned by Pamphlets and Preachings af∣ter Gourie's Execution.

Observ. 2^o. That all the Subjects are Discharg'd to medle in His Highnesses Affairs, or in the Affairs of His Estate, that is to say, to make inquiry curiously into what His Majesty, or His Council does, for that is presum'd to be done malo animo: And in all ages such curiosity has been punish'd. Thus Augustus kill'd Panarus vel••ti curiosum Sueton. cap. 27. and Plut. l. de curios. Observes that

the Locrenses fin'd such curious persons, Vid. Langl. l. 8 Semestr. c. 11. who Treats on these Crimes Learnedly.

BY this Act, no Sentence of Forfalture for Treason,* 1.85 committed against the King and his Estate, can be quarrelled upon Nulli∣ty of Process, till the Crime for which the Forefalture was led be pardoned.

Observ. 1. That since this Act speaks only of Crimes committed against the King and His Estate, it has been doubted, whether this Act can be extended to Treason, meerly committed against the Kings Person; for by the Kings Estate is ordinarly mean'd His Pre∣rogative and Majesty.

Observ. 2. That that part of the Act which Discharges Advocats to plead, or consult for any person, who stands forefalted, is abro∣gated, Act 38, and Act 39 Par. 11 Ja. 6. But yet none use to plead for forefalted persons, till they get a Licence from the Judge before whom the Tryal is to be.

There was a Commission granted to consider what nullities could be objected against Swintons Forfalture, and it was alleadg'd that the Decreet was null by intrinsick nullities, in substantial points, and so the Commissioners might proceed, since this Act was only to be in∣terpreted of Formalities, and alleadg'd nullities, which could not be instantly prov'd, or did not appear by the Decreet it self, yet they would not proceed, because the forefalture was not, nor could be purg'd, and the Crime was notour.

THis Act declaring all Remissions for Slaughter, Fire raising,* 1.86 and other odious Crimes to be null, is suitable to Stat. Dav. 2. cap. 50. and Act 7. Par. 3. Ja. 5. But this Act is thought Tem∣porary, as is likewise Act 63 Par. 6 Ja. 4. and notwithstanding of these Acts, His Majesties Remissions for such Crimes has been oft sustain'd, vid. crim. pract. Tit. Remissions.

THis Act is in Desuetude, for His Majesties Guards are paid out of the Excise;* 1.87 and I find this Act formerly establish'd by an Act of Council.

THis Act is fully Explained, crim. tit. Murder.* 1.88

BY this Act Decreets of the Lords of Session are discharged to be Suspended without Consignation, but this being in Desuetude,* 1.89 it is by the Regulations, Article 19. appointed, that Decreets in foro shall not be Suspended without Consignation, or by the whole Lords in time of Session, or by three Lords in time of Vacance.

It may be doubted what this Act means, in appointing Letters of Poynding, as well as Horning to pass, not only for liquid Sums, but where the execution consists in facto, since poynding can only be for a liquid Sum. To which it may be answer'd, that the meaning of the words are, that poynding may be allow'd, though the Obligation was not originally for a liquid Sum, but ad factum praestandum; but it is necessary in that case, that the effect should be thereafter liqui∣dat

by a Sentence, else there could be no commensuration, and so no poynding; and yet I cannot deny but the Clause is ill exprest.

* 1.90THis Act appointing that the Defender shall find Caution to en∣ter the Justice-Court, but in sober manner, is now in De∣suetude, there being no such Clause either in the Letters, or any such Caution found, but though the Justices allows some Friends to enter the Pannel with the Defender, yet these must be very few, and disarmed.

* 1.91THis Act appointing that Salmond, Herring, and White Fish shall be only sold at the Staple here related is in Desuetude, and though the Town of Aberdene has their own Gadges of Salmond conform to this Act, yet the Town of Edinburgh pretend a right to be the sole Gadgers of Salmond in all Scotland, by vertue of a Gift from King Charles the First, which Gift the Town of Aberdene have suspended upon this Act; and this Act in so far as it appoints Her∣ring and White Fish to be brought to Leith, and Crail, is expresly abrogated by the 14 Act, Par. 10 Ja. 6.

* 1.92THis Act is explained in the Observations upon the 75 Act, 6 Par. Ja. 6.

King IAMES the sixth, Parliament 9.

* 1.93THis Act was introduced to correct an ill custome which had crept in at the Reformation, whereby the Popish Prelate finding that they were to be put out, did demit their Benefices in favours of these with whom they entered in a compact, and by vertue of which compact they reserved to them∣selves their own Liferents; Likeas, according to the C••••on Law, Si quis resignaverit beneficium retentis sibi fructibus pro per si ne non valet resignatio nam decet quod ipse qui Altari servit de Altari; vivat, cap. cum secundum 16 de prab. And in reason it must be concluded that the Be∣nefices must be ill served when these who resign reserve their own Liferent, for he who serves will have nothing in that case, and he who serves not ought to have nothing: Therefore by this Act all such compacts are declared null, and it is declared, that for the fu∣ture all Rights to be made to Prelacies shall be null, except the places be vacant by decease, forfalture, or simple dimission of him who pos∣sest the same formerly; nor doth the King now accept of any di∣mission or resignation in favours of any other party, for that is a real invasion upon His Royal Power, by which he dispones upon all Offices according to his free will.

* 1.94WHen persons are forfeited, they or their Children use to ab∣stract the Evidents of their Land, and therefore by the first part of this Act, it is declared that the King or his Donatar

shall have right to all Lands, &c. peaceably possessed by the fore∣feited person, for the space of 5 years preceeding the forfeiture.

Observ. 1. That this priviledge holds only in cases of Treason, but not where his Majesty comes to have right by any other Title, and it may be debated if this should hold where the forfeiture pro∣ceeds upon all the Laws whereby any Crime is ordained to be pu∣nished as Treason, but it is not declared to be Treason, such as Theft in Landed Men, &c. for it would appear that this priviledge was only granted where the Crime is declared to be Treason; but yet since these Crimes are punished as Treason, this Act should ex∣tend even to these, for the presumptions inductive of this Act, viz▪ that they will abstract their Evidents, holds even in this case, and it cannot be deny'd but these persons are forfeited as Traitors.

Observ. 2. That this right introduced in favours of the King, seem to be only presumptive, so that if any Party should show a Back-band from the forfeited person who was 5 years in possession, the person to whom the same was granted, or any who could in∣struct a better right, might pretend to exclude the Donatar, even as a Church-man who was decennalis & triennalis possessor, might be ex∣cluded upon a better right, or by proving that the Church-man pos∣sessed only by a tolerance, but yet this presumption may be answe∣red to be juris & de jure, and so to exclude all better rights, & si∣bi imputent, who having such rights, suffered the forfeited person for 5 years to possess without any interruption, and if such competi∣tions were allow'd, the King's right might be eluded by an hundred contrivances; and though this Act may seem to be useless now, since the Registration of Writs, which hinders Writs to be abstracted, yet that was repelled 23 and last of July, 1666. Earl of Southesk against the Marquess of Huntley; but by the 4 Act, Par. 18. Ja. 6. It is de∣clared that Extracts of Rights, either disponed or confirmed by his Majesty shall be valid, though the principles cannot be produced, and yet if King and Parliament pleased, this Act might suffer some correction, because his Majesty is much better secur'd now by Regi∣strations than he was at the making of this Act.

Observ. 3. That since this Act appoints this quinquennial possessi∣on to be proven only by the Retour of an Inquest, it was therefore well found that it could not be proven by exception, 13 June, 1666. Home contra Tennents of Kello and Home. Yet though there be not a Retour already made, the Lords will superceed extracting that betwixt and such a time the quinquennial possession may be re∣toured, as was found in that case.

Observ. 4. That the possession condescended on in the Act is where the forfeited persons were 5 years in possession by labouring the same with their own Goods, setting the same to Tennents, or uplifting the Mails and Duties, so that it would seem that these kinds of possessions are requisite in this case, and that the Act of Parliament hath required them, because they are palpable; and therefore civil possession per constitutum, by reservation, receiving of Annualrent from Principal or Cautioners, not relative to the In∣feftment

of Annualrent, but to the Bond or otherwayes seen not sufficient by the words of this Act,

Observ. 5. That since this Act is founded upon uninterrupted pos∣session of the forfeited person, that therefore where there are inter∣ruptions; this holds not, and thus it was found that the raising of an Inhibition was a sufficient interruption, 23 July, 1666. Earl of Southesk con, Morquess of Huntly.

By the second part of this Act it is appointed that where the for∣feited person was in possession of Lands, Tacks, or Teinds, &c. the time of the forfeiture, albeit he had not been in possession 5 years preceeding the Process or Sentence of the Forfaulter, yet the Assize must retour what the Rebel did possess the very time of the Pro∣cess or Sentence, and the King or his Donatar, is to be entered there∣to summarly, and cannot be removed for the space of 5 years, that in the mean time he may search and seek after the Rebels Rights, for he cannot be presum'd to know quo jure the Rebel possest; and albeit it may seem both by reason and by this Act, that this should only hold where ••acks or previous possession, though somewhat shorter than 5 years, by vertue of a right, could be proven, yet the Lords found that this part of the Act holds even where no right could be shown, if the forfaulted person was in possession, though for never so short a time; and it being alledged that these 5 years in this last part of the Act should be counted from the time of the forfaulter, and not from the time that the Donatar en∣ters to possession, for else he might by lying out prejudge the Cre∣ditors. The Lords found that if the Rents were extant, he had right thereto from the date of the forfaulture, though prior to his possession, 24 January, 1667. Home contra the Tennents of Kello: But that case being a competition betwixt the Donatar and an Ap∣pryzer from the Rebel, the Lords found the Donatar might sum∣marly redeem the Appryzer, and enter in possession, ibidem.

* 1.95THe reason upon which this Act is founded, is, that when any person raises a multiple poynding, the party who is troubled by many who pretend Right, ought to be secur'd when he pays to that person who prevails nam res judicata pro veritate habetur, and he payes authore praetore, and though Minors have by the Ci∣vil Law and ours, a double remedy, if their Tutors and Curators suffer a Decreet to pass against them for not compearance, viz. That he may either reduce the Sentence, or pursue the Curators for damnage and interest, in suffering the Decreet for no compear∣ance to go against them; yet in this Act it is declar'd, that if a Ma∣jor who compeats with a Minor in a multiple poynding, be pre∣fer'd to the minor, because of the Minors not compearance in that case, the minor has only action against his Tutors and Curators, but cannot Reduce the Decreet of preference, but if the Minor have no Curators, it is declar'd he shall be restor'd as accords of the Law, that is to say, he may reduce the Decreet, since in this case he has no other remedy, but if the Decreet of preference be quar∣rellable for any error in the execution, or if the party absent can

show a necessary reason for his absence, then the Decreet is quar∣rellable, either by Majors or Minors; yet the Lords found that payment bona fide, conform to this Act, does secure the Payer, not only against the principal Competers, but against their As∣signeys, November 24. 1676 Weir contra the Earl of Callender; but it has been debated whether the party who has been prejudg'd by the Decreet of multiple poynding, may be Repon'd against the same, by way of Suspension; or if a Reduction be necessary, and it has been found, February 1 1670. Watson contra Sympson, that a De∣creet of multiple poynding, obtain'd against the party, could not be taken away without Reduction at the parties Instance; nor was a Suspension at the Tennents Instance sufficient, because the Narrative of this Act bears expresly That the parties used to crave to be reponed, by intenting Reduction; and that the party who ob∣tains the Decreet, is by the Statutory part only oblig'd to answer in the second Instance, which the Lords found to be by way of Reduction; and from that Decision it is very clear, that these words, The second Instance in all Statutes, are only Interpret by the Lords, to be mean'd of Reduction, and not of Suspen∣sion.

Observ. 1^o. That the party absent will not be prejudg'd, if he have a necessary cause of his absence; for it were unjust to punish a man for what was not in his power; and yet by this Reserva∣tion, he who gets payment is still unsecure; but he who pays by vertue of the Decreet before Reduction be intented, can never be call'd in question.

Observ. 2^o. That the party prefer'd in the multiple poynding, is only thereby secure, as to the bygone profits which are paid, and so in effect facit tantum fructus consumptos suos; and if the sums be extant, unpaid to the party so prefer'd, he who had the best Right before the Decreet of multiple poinding, will still be prefer'd; and it seems by the words of the Act, that if the profits themselves be extant, the best Right will be prefer'd; for the words are, Nor yet shall have any Right to the bygone profits intro∣metted with.

This is by the 19 Act Par. 10 Ja. 6. Declared only to be extend∣ed to such actions of multiple poinding, as were intented after this Act was made.

THe first part of this Act dispensing with the not Sealing of such Papers as are to be Registrat,* 1.96 is explain'd in the 117 Act Par. 7 Ja. 5. and whereas this Act declares, that a Seasine is sufficient, if Subscriv'd before one Notar, and a reasonable number of Wit∣nesses, that reasonable number is understood to be two, though by a vulgar error it is believed, that a Seasine requires four Wit∣nesses; and now by constant custom, four Witnesses are always adhibit in Seasines, and by the 5 Act 3 Par. Ch. 2. their Subscrip∣tions are necessary.

* 1.97BY this Act it is appointed, that all Kirk-lands set in Feu-ferm should be confirmed by the King, else they are null by way of exception.

Observ. 1^o. That though the Narrative of this Act bears, That all Feus and long Tacks set since the Year 1558. should have been Confirmed; yet the body of the Act does not declare, that long Tacks need to be Confirm'd; Vid. manticam de ambig. convent. lib. 5. Tit. 10. And Balfour relates Decisions bearing, That Tacks for three nineteen years are esteem'd as alienations, and so should be Confirm'd.

Observ. 2^o. This Act Declares, that of old all Kirk-lands should have been Confirmed by King or Pope; Yet the 187 Act Par. 13 Ja. 6. seems to insinuat, that neither Confirmation of Pope or King was necessary, but that the Kings consent was sufficient; and that therefore the Act does Statute, That no right can be quarrel∣led for want of Confirmation, where the King has consented un∣der the Privy Seal; but that the Kings Confirmation was ne∣cessary of old, is clear, R. M. lib. 2. c. 23. and the reason there given is, quia corum terrae sunt de eleemosyna Domini Regis, and being presum'd to have been given by the Kings, for praying for them, they should not be appropriat to another use, without their consent.

Observ. 3^o. That only Feus of Kirk-lands are ordain'd to be Confirm'd; and therefore the Lords inclin'd to think that Feus of Salmond Fishings set by Church-men, were not null, though not Confirm'd, and January 20. 1666. Rentoun contra Feuers of Col∣dinghame. The Lords found that Gifts of an Office of Forrestry, granted by Kirkmen, needed not be Confirmed, these not being properly Feus of Kirk-lands, ibid.

THis Act Appoints that all Money and Victual assign'd to the Cap∣tains of the Kings Castles,* 1.98 and whereof they have been in pos∣session for five years, shall remain with them unquestionably, and this is like the Quinquennial Possession given to the King in cases of Forefalture.

Nota, That the King has a Duty paid to him in Exchequer, cal∣led The Castle Wards, so call'd, because they are paid in forward∣ing or keeping His Castles, and he has no Right to them, but con∣stant payment, conform to the Exchequer Rolls; and therefore yearly the Sheriffs are charg'd with them, and they get Letters of Relief, and it was found in a case betwixt the Sheriff of Hadding∣toun and Sir John Nisbet, January 11. 1678. That the said Sir John had not prescriv'd an exemption as to these Castle Wards, neither against the King, nor Sheriff, though he had paid none for four∣ty years, since there were Letters of Relief yearly granted. 2^o. It was alleadg'd, that his Lands of Dirletoun having come once in the

Kings hands, by Forefalture, and His Majesty having of new given them out, that Servitude was thereby extinguish'd since res sua ne∣mini servit, but was repell'd; because the King did of new only Dispone the said Lands, as when they fall in his hands by the Fore∣falture.

King IAMES sixth, Parliament 10.

MR. Nicol Dalgleish,* 1.99 and some other Presbyterian Mini∣sters, having reproached the King and His Government, this Act declaring slanderous Speeches and Writs, punish∣able by Death, as Sedition was made, and is more fully explain'd in the Act 134 Par. 8 Ja. 6. and in my crim. pract. tit. In∣juries.

Observ. 1^o. Sedition is a Name that receives different punish∣ments, according to its different Degrees of guilt; and therefore where it is destructive of the Kings Authority immediatly and de∣signedly, it is punishable by Death, as here, though l. 3. C. de seditiosis; the punishment of these, qui ejusmodi voces emiserunt, is more moderat; and as that Law well observes words spoke in civitatibus & tumultuosis clamoribus, are more punishable than the same expressions would be, if spoken in private places, or with∣out tumult; but yet by this Act, such seditious Speeches, whe∣ther spoken privately, or publickly, are punishable by Death.

Observ. 2^o That when His Majesties Advocat designs not to pursue the Authors of such Speeches to the Death, he Libels on∣ly that the Pannel did speak or write what tends to Reproach or Slander His Majesties Person, or to misconstruct his Proceedings, but not that they actually did so, and in that case the guilt infers only an arbitrary punishment according to the circumstances that attend the same.

Observ. 3^o. That though by this Act the Depraving His Maje∣sties Laws and Acts of Parliament, is declared punishable by Death as Sedition; yet all misconstructing Acts of Parliament, is not so punishable; and thus, though a Sheriff or other Judge would misinterpret a Law, so as to make it infer a higher mulct or penal∣ty than the Law design'd, that could not infer Sedition or Death, though it be likewise punishable; but the design of this Act is, to declare the depraving and misconstructing of Laws, so as there∣by to reproach the King or Government to be Sedition, and Spots∣wood tells us, pag. 243. That this Act was made for punishing these Ministers who had declaim'd against the Acts of the former imme∣diat Parliament, as destructive to their Discipline. Upon this Act the Lord Balmerino was found guilty in December 1634. for hav∣ing

dispersed a Petition that reflected upon the Government; in which Process, it being fully Debated that dolus malus should be found in such cases, where the design of defaming makes only the Crime; this was repelled, because where the words may of their own nature, move dislike of, and Sedition against the Go∣vernment, the design needs not be proved; for if the people be irritate, the Author ought to be punished, and this Law consi∣ders the effect, and not the design, and he ought to blame him∣self, who meddles in matters of Government without his Sphere.

It was likewise alledged in this Process, that a Petition to the King Himself, could not be interpret a misconstructing; but this was also repell'd, because both by the Common Law and ours, it has been found, that great affronts have been put upon the Go∣vernment, by way of Supplication. Upon this Act also, Francis Tennent was found guilty in anno 1680. and Mr. Thomas Ross, in anno 1618. and the Earl of Argile, both in the Year 1662. and 1681.

Observ. 4^o. That in this Act mention is made of raising dislike betwixt His Highness, His Nobility and loving Subjects; which word Nobility was expresly put in by the Lord Hamilton and other Noblemen, who then turned out Captain James Steuart, against whom this Act was partly designed, whereas in the Act 134 Par. 8 Ja. 6. made the year before, by the said Captain James's influ∣ence, against slanderers, there is no mention made of the No∣bility, as is observed by Mr. Robert Macgil, in Balmerino's Pro∣cess.

* 1.100THis Act discharging all Dilapidations of Benefices, runs only in the words of the Act, against such as dilapidat Benefices, that are at His Majesties presentation; but yet de praxi, no Bene∣fices that are even at the presentation of Laick Patrons, or Eccle∣siastick Subjects can be dilapidated.

Dilapidations of Benefices were formerly discharg'd by the 101 Act Par. 7 Ja. 6. but to elude that Act, Benefic'd persons us'd not to give down any of the Bolls payable to the Benefice, but to convert these Bolls in Money, and to make these who were lyable in payment, only lyable in very small prices, and therefore such Conversions are discharg'd by this Act; But it may be alleadg'd, that where the Conversion is for less than the present price, as Victual now gives, it is unlawful since that Conversion was unne∣cessary, and the Benefic'd person is prejudg'd, because if no such Conversion had been made, he had got the Bolls presently, which could have maintained him better than the small prices, which these Bolls were worth the time of the Conversion; and yet by our Decisions, the price that the Bolls gave the time of the Con∣version, are only considered, because both parties took their ha∣zard, and the price mentioned in the Conversion, is presum'd to be the full price, except it could be proven that the Victual gave

then greater prices for in antiquis, there can be no other probation, Vid. observ. upon the said 101 Act 7 Par. Ja. 6.

BY this Act all Leagues and Bonds made amongst His Majesties Subjects, without his consent, are discharg'd.* 1.101

Observ. 1^o. That though the Rubrick bears, that all such Bonds and Leagues are null; yet they are not expresly annulled in the bo∣dy of this Act, but they are expresly annull'd by the 4 Act Sess. 1 Par. 1 Ch. 2.

Observ. 2so. That the punishment is not here exprest, but in ge∣neral, under the pain of being holden as movers of Sedition, and punished with all rigour; nor is it more special in the foresaid 4 Act Ch. 2. which I admire; but yet I think that such Bonds and Leagues are punishable by Death from the Words, all rigour, which may be very well extended to Death, especially in subje∣cto capaci, as Sedition is, for certainly some Seditions may be pu∣nish'd with Death, as we see in the first Act of this Parliament, and by this same Act, such Leagues are declar'd to be against all Law and Allegiance. Likeas by the 7 Act Par. 1 Ch. 2. The Subjects are discharg'd to take or renew the Covenant, which is a Bond or League, upon their highest peril, and I wish the Act had determined what was the highest peril, for generally Lawyers do not extend such Statutes to Death.

I find that the Nobility and others having enter'd into Bonds amongst themselves, whereupon His Majesty was surpriz'd at Ruth∣ven, there are several Acts of Council, and particularly a Pro∣clamation, issu'd out in April 1582. discharging all such Bonds so enter'd into, and that none enter into such Bonds for the future, and that gave occasion to this Act, which says, that these Bonds have given occasion to a great part of the Troubles that have occurr'd since; The Certification in that Proclamation, is under the pain of being repute favourers and partakers with the Conspirators a∣gainst His Highness Majesty. The Act here related to is the 43 Act 6 Par. Queen Mary, but that Act properly extends only to Bonds of Man-rent, but not to Bonds of Combination, as this does, so that this Act should rather have been founded on the 30 Act 2 Par. Ja. 1.

There is in that Proclamation, and this Act, exception made of Bonds enter'd into with the Kings consent, which was added, be∣cause the Nobility and Estates at the Kings desire, entered in a League and Bond for preservation of Religion, which is Registrat in the Council Book, June 8 1585. But this Bond is subscribed by very few of every Estate.

BY this Act Charges super inquirendis are discharged,* 1.102 but it is a mistake to think that by that Act, the King or other Judges cannot examine men without a formal Process, for the design of that Act is only to discharge the denuncing men Rebels upon such

Charges without previous tryal, and yet if the Chief Officers of State, or at least four of them concur, it would seem that by that Act, even such Charges are yet lawful, and where the King or Magistrat has previous informations of Crimes latent, it were against the interest of the Common-wealth, that they should not be allowed to clear these by particular Interrogators.

It was urg'd from this part of the Act, that no man could legal∣ly be Imprisoned, even by a warrand under the Kings own hand, and that this was very just in it self, since as Liberty is very preci∣ous, and the best part of Property, it was sit to secure it so, as that none could take it away, but these who will be answer∣able, and the King could not in Law be made answerable; and therefore it was justly by this Act appointed, that no man could be imprisoned by any Letter, even under the Kings own hand, ex∣cept it were subscrived by the Officers of State, who should be an∣swerable; to which it was answered by His Majesties Advocat, that this Act did not debar the King from granting such privat warrands under his own hand, for there might be some cases which he could impart to none of his Officers of State, as for instance, if all his Officers were upon a plot against him, or if the Crime were the being upon a Plot with a forraign State, which the King were not yet in a condition to resent, though he might justly apprehend his Subjects who were in accession to it; but the design of this part of the Act was only to discharge the passing ordinary Letters in common course under the Signet, except in this Method, and it might be much rather retorted, that since only Letters under the Signet, are discharged to be past, except in this method; there∣fore privat warrands from the King himself, are not discharged, for if the King and Parliament had designed any such thing, they would have expresly discharged all warrands under the Kings hand, which is not done in this Act, and it is clear by the 184 Act 13 Par. Ja. 6. That the King may give Warrands out of his own mouth, to apprehend Rebels, or others whom Magistrats are obliged to ap∣prehend.

I find also that this Act was past formerly in the Privy Council the 23 of June, this year, 1585. and there the Act bears, To have been made to prevent the obtaining of unformal Letters at the importunity and malice of privat persons, which clearly evinces that it was not design'd to preclude the King from securing such persons who he had reason to believe were obnoxious to the Government.

It is observed in the Acts of Sederunt, that the King 8 June, 1581. by his Letter ordain'd several Advocats to be imprison'd indicta causa.

By the second part of this Act Writers to the Signet are ordain'd to keep the old Style unalter'd, for Arguments brought from Style are a great part of our Fundamental Law, and in all our Decisions Argumentum a Stylo is still very strong, as from the wills of Inhibiti∣ons, Interdictions, from the Forms of the Chancery, &c. and yet in some cases this Argument is not concluding, and thus Gifts of single Escheat bear all Moveables present and to come, and ye••

they give only right to what Moveables the Rebels have or shall possess within a year after rebellion; and though by the Style of Gifts of Wards the relief is discharged, yet that discharge will not be valid. As also, the Style of Inhibitions and Interdictions bears a prohibiti∣on to alienat either Heretage or Moveables, and yet it extendeth only to Heretage.

Stilus Curiae is by Justinian call'd forma & observantia, whence comes our word, Form of Process; Stilus & consuetudo fori vel judicii pro lege observari d••bet, l. 1. §. in honorar. de var. & extraord. cog. vid. V••et. de Stat. Sect. 3. c. 3.

Observ. That though by this Act every Writer should write his name upon the back of the Signature which he writes, which doubt∣less was introduced, to the end that every Writer might be answe∣rable for his errors in Style or otherwise; yet if at the passing of the Signature in Exchequer, the Writer subscribes his name, the Sig∣nature will be sustain'd, which was found necessary, though it was alledg'd that this Act was in Desuetude, as to this point, for it was found not to be in Desuetude.

THis Act explains the 141 Act, 8 Par. Ja. 6. and dispenses with a part of it, and that is the Act to which this Act relates,* 1.103 though it be not expresly cited.

THis Act appointing Licences to be null,* 1.104 except they be sub∣scrived by the Comptroller, is so far innovated, that they must now be subscrived by the Thesaurer and Thesaurer-Depute, who are come in place of the Comptroller.

BY this Act, Sheriffs, Stewards, Magistrats of Burghs, and others,* 1.105 are ordain'd to apprehend notorious Thieves, and if they refuse they may be pursued Criminally, as partakers of their guilt▪ or Ci∣villy for the payment of their Debt, and generally all these are ly∣able if they refuse to apprehend any Rebel for Civil Debts: But it may be doubted, 1. If any Judge be oblig'd to apprehend a man at the desire of any person who cannot instruct the person whom he takes to be a Rebel, by producing Letters of Caption, as he must do in Civil cas••s, and what makes a Thief a notorious Thief to this ef∣fect, 2. If meer negligence in not apprehending these notorious Thieves be sufficient to found a Criminal pursuit against the re∣fuser, as partaker, nor have I seen this sustain'd; but if any person shall contribute actively to a Thiefs escape, he is punishable as Art and Part, but with a lesser punishment, vid. Clar. Quaest. 9. num. 7. & Bart· ad l. furti, ff. de furto ait spem datam ad evadendum dici au∣xilium ad committendum.

Nota, By this Act all who are present and able to apprehend, are oblig'd to assist in taking Thieves, or if they refuse they are to be re∣pute partakers with them; and though they may be punish'd with some small Mulct, yet the certification here set down is in Desue∣tude as to them, vid. tit. Duels Crim. Observ. num 8. Idem est facere, & non prohibere cum possis; and as the Law presumes, every man guilty who wil not concur to punish what all men hate so much, and that they would concur if they favour'd not the guilt; so this assistance is so profitable for the Common-wealth, that such as deny it are Criminal,

but that which is considerable in this Act is, that if any Clann'd man rob any peaceable Subject, and if the Sheriff, or Steward, &c. re∣fuse to assist him, not only is the Sheriff, &c. lyable; but further, it is declared lawful to them who have their goods stollen and rest to apprehend and intromet with the Goods of the Offender, or any other of the said Clann, and retain them till compt and reckoning; and though it would seem that this taking or retaining by privat au∣thority, is not allowable till the Sheriff be required to give satisfa∣ction, and refuse; yet in the case Moor contra Mefadrick, 29 No∣vemb. 1678. It was found that these were separate Clauses, and that a person pursued for a Spuilʒie, might propone relevantly that the Pursuer being a notorious Robber, or holden and repute so, had rob'd him of as much, and so he might justly have seiz'd upon the like quantity of the Pursuers Goods, though he had not first required the Sheriff to repair him; nor was this Act found to be innovat by the 100 Act, Par. 11. Ja. 6. which appoints a new method for Goods taken away by Clann'd Men.

* 1.106HEre is a Revocation of the King's Property in general, but I find in the Registers of Council, that upon the 22 of March 1684. The King revocks all Rights made by him of the Abbacie of Dumfermling, which Revocation is made with the consent of the Privy Council, though ordinarly Revocations are made by the con∣sent of the Parliament.

* 1.107BY this Act the nearest Agnat, that is to say, the nearest of the Fathers side should be Curator to Fools, Idiots, and Furious Persons.

Observ. 1. That this Act is extended to Deaf and Dumb Persons, to whom likewise the nearest Agnat is to be Tutor, and though their Tutors and Curators are to be served by this Act, yet if the nearest Agnat omit, or is uncapable to serve, there is place for a Dative; nor doth this Act exclude the Father from leaving Tutors in his Testament to such Idiots, and Furious Persons, as are with∣in the years of Tutory, as he may do to other Children: and Craig observes that if the Furious Person, or Idiot have Lands, the Su∣perior will be preferr'd to the nearest Agnat; but in this I differ from Craig, for the Agnat will be preferr'd to the Tutory of these, as he will be to the Tutory of Minors, and Superiors have by this Act dispens'd with their Feudal interest, if they had any.

Observ. 2. This Act relates to the Common Law, by which the Curators are called Curatores Legitimi; but by that Law, as by ours, if there be no Agnats extant, the Judge gives a Dative, who is pre∣ferr'd to all other nearest of Kin, Vid. Tit. ff. de curat. Furios: And the Agnats by that Law, as by ours, are preferr'd according to the same degree as they would succeed, which is most just, since the Law does prefer them to the custody of the Estate, because of their hope of Succession, and therefore it may be doubted where there are three Brothers, whereof one is furious, if his Estate be

conquest, whether the elder Brother will be preferr'd to be his Tu∣tor, because Conquest ascends; but I incline to think that the Heir of Line is still to be Tutor of Law.

Observ. 3. That this Law appointing the nearest Agnat to be Tu∣tor, holds only where there is not a Legal Administrator, and there∣fore if a Wife who is an Heretrix become Furious, the Husband and not the nearest Agnat will be her Tutor; and though Papinian thought the Husband should not be Tutor, l. 14. ff. de Curat. Furios. Yet the customs of other Nations agree with ours, Perez. num. 10. h. t. vid. Act 67. Par. 8. Jam. 3.

Observ. 4. Though this Act equiparats the Tutors of Fools, Idiots, and Furious persons, to other Tutors of Law, allow'd to Minors, yet there seems this difference betwixt them, that Tutors of Law to Minors must serve within year and day from the time they are in ca∣pacity to serve, but the nearest Agnat may serve himself Tutor of Law to an Idiot or Furious Person at any time, and when he is so serv'd he will be preferr'd to a Tutor Dative, though the Lords will authorize that Tutor Dative to exerce till a Tutor of Law be served, the Exchequer being in use in the interim to grant Datives, as the Lords of Session are to grant Curators ad lites, 21 January, 1663. Stuart contra Spreul; and though in that case the Pupil was not then declared Idiot or Furious by an Inquest, and so there could not be a Tutor of Law; yet it seems that albeit there had been a previ∣ous Declarator, and so the Tutor of Law had been negligent, the Decision had been the same, and the reason is, because this Act pre∣fers the Agnats; and yet it decides not, quid juris, if they enter not; and what if the next Agnat require the nearest Agnat to enter, and he refuse quo casu, either it must be said that albeit the Exche∣quer make him Tutor Dative, yet he is not properly Tutor or Cu∣rator, but only a Curator ad lites, or else if he be once properly Tutor, the next Agnat cannot thereafter serve himself, nam Tutorem habenti Tutor non datur, vid. observ. on the 67 Act, 8 Par. I. 3.

IT is to be observ'd from this Act,* 1.108 that Laws ought not to be ex∣tended ad praeterita, but only ad futura; and as the Act sayes most reasonably, Subjects cannot observe what is not yet made; and not only so, but Argumento hujus Legis, it may be concluded that Processes are to be decided according to the Laws that were made before the Process was intented, though the Law be made before the Decision in the Process, which is very observable: a notable in∣stance may be seen in Act 94. Par. 6. Ja. 6. where the Parliament makes an Act upon occasion of a Process depending before the Session, to be a rule in like cases for the future, but leaves the case depending to be decided as they think just. Vid. Observ. on 10 Act P. 3 Ch. 2.

IT is by this Act appointed that no Signatures or other Writs shall be pr••sented to his Majesty but by his ordinary Officers,* 1.109 to whose Office the same properly belongs. And it appears by the Registers

of Council, that this Act was a part of the remedy of that complaint mentioned in the 13 Act of this Parliament.

Observ. 1. That by Officers here are mean't Officers of State, for none else can present Signatures, and though a General Major or a President be his Majesties Officers, they cannot present Signatures, and yet any Officer of State may present promiscuously any Signa∣ture, though it would seem by these words, By his Majesties ordi∣nary Officers, and to whose Office the same properly belongs, that every Officer of State may not promiscuously offer, but that the Thesaurer or Thesaurer-Depute can only present Papers relative to the Thesau∣ry, the Justice-Clerk to the Justice Court, &c.

Observ. 2. That though any Officer of State may present Signa∣tures, yet by the 60 Act 1 Sess. 1 Par. Ch. 2. any Officer who presents such Papers is obliged to send the Registrat Docket to the Secreta∣ry, to the end his Majesty be so informed as that he may not grant double Rights.

King James the sixth, Parliament 11.

BY this Act the King's lawful Age is declared to be 21 years compleat,* 1.110 which Act was made to prevent a debate that had fallen out in France a little before that time, where the Par∣liament of Paris had declared that the French King was not Major till he had compleated the last year of his Minority, whereas the Parliament of Rouen had declared him to be of lawful age, when he had begun the last year of his Minority, nam in favorabilibus an∣nus inceptus habetur pro completo; and though Minors may revocke deeds done at any time before the last moment of their Minority, and that Minoritas computatur de momento in momentum; yet it is advan∣tagious for a King to enter upon the Government of his Kingdom as soon as can be. And though this be the age for reducing of deeds done by them, they have another Majority in relation to the Government, for we find that Josias entered upon the Govern∣ment at 8 years, and Solomon at 11. Cicero Philip. 5. tells us, that the Kings of Macedon entered very early, and in Anno 1375. the Kings of France were declared to be Majors and capable of the Go∣vernment at 14. but by the Commission of Regency set down in the Act 1. Par. 1. Ja. 6. The Regency is declared to continue till 17. at which time the King is to take upon him the Government; but yet King James 6 took it upon him sooner; nor do I find any parti∣cular time limiting the King as to this point, and therefore there may be many doubts amongst us whether the King or the Gover∣nour should be obeyed betwixt the Kings ages of 14 and 21. but before 14 no Pupil is thought fit by Law for administration; and it may be strongly urg'd that 17 is the Legal age, for why was the Com∣missions insert, it being only a temporary right, and such use not to be insert amongst our Laws.

By our Law minority runs in all persons to the last moment of 21 years; whereas by the Civil Law, it runs till 25 years compleat; and in this our King differs not from others, but because by the 2 Act Par. 1 Ja. 2. Our Kings were declared to be in mi∣nority till 21 years, therefore by the 87 Act Par. 10 Q. Mary. 21 years of age compleat, was declared to be the perfect age of our Queens; and by this Act it is declar'd to be the perfect and lawful age of our Kings. It were to be wished, that for proving the age of all Minors, there were authentick Registers appointed, as in o∣ther Nations, and in some parts of our own, since for want of this, true probation of their birth perisheth, and false probation is adduc∣ed.

OBserv. 1. That by this Act,* 1.111 the receipting persons of the Romish Religion, is not simply made Criminal, except they did reset them for three days together, or at three several times, knowing that they were such, which may be urg'd in all cases of Intercommuning, and resetting of Rebels, and yet in other cases once and short Intercommuning is sufficient to infer a Crime.

Observ. 2. That by the 164 Act 13 Par. Ja. 6. The resetting excommunicat Papists, or Traffecting Jesuits for three nights together, or three nights at several times, is made sufficient to in∣fer that they knew they were such per presumptionem juris & de jure, nor could the knowledge of their being such be otherways proven, and if it had been necessary to prove their knowledge, the Law might have been easily eluded by industrious ignorance; and by that Act likewise, the third fault is declared punishable as ••reason; and be∣cause the punishment was so great, it was just the presumptions where∣by it was to be infer'd should be strong.

THough by this Act only the Sellers and Dispersers of errone∣ous Books, are to be punished at our Soveraign Lords will,* 1.112 and such Books to be burnt; yet by our practise, the Bring∣ers home of Crucifixes, Popish-beads, &c. are to be used in the same way; and though there is only warrand here given to a Minister and Magistrats of Burgh to seize, and burn such Books; yet Ma∣gistrats use frequently to seize without a Minister, and Sheriffs and other Officers do likewise seize, but since burning seems to be an extraordinary power, and so not to be assum'd without a special Statute. I think that no Officers, save Magistrats of Burghs, with the concourse of a Minister can burn·

THe reason why Ministers Benefices under Prelacies,* 1.113 are declar∣ed to be free of the first Fruits, and fifth penny of their Bene∣fices, is because in time of Popery, the first years Fruits of every Benefice were due to the Pope, and are call'd by the Canonists An∣nata, against which several Councils have made large, but ineffe∣ctual Representations, and the fifth penny was payable to the King,

and though this Act discharges only the exaction of these in Bene∣fices under Prelacies, yet now even Prelacies are free from these ex∣actions in Scotland, though in England the first Fruits belong still to the King.

Though the Priests were free from Subsidies amongst the Ae∣gyptians, Genes. 47. vers. 22. and that l. placet C. de Sacr. Eccles. nihil extraordinarium abhinc superinductumve ab Ecclesia slagi∣tetur; Yet this was only as to Tiths, and things meerly Spiritual, but the Lands of the Church were lyable to Impositions, laid on for the common Defence of the Countrey, and therefore the Ca∣nonists, ad c. 1. de immun. Eccles. give as a Rule, that in bonis Ec∣clesiasticis ut Cleri••••s in patrimonialibus ut laicos tractandos, and such was this fifth penny here mentioned; and with us Ministers sti∣pends, but not Bishops Lands, are now ordinarly freed from Impo∣sitions.

* 1.114OBserv. 1. That though such as invade Ministers for the Causes therein exprimed, viz. for seeking their Stipend; or because the Minister inflicted Church-censures upon them, or any other forged quarrel, are to be punished with all rigour; yet if they in∣vade them upon any account, that is not Ecclesiastick or preme∣ditat, as in an accidental scufle, they are only in these cases punish∣able as for wrongs done to other Subjects.

Observ. 2. Since the Act appoints that they may be punished with all rigour, and the tinsel of their Moveables; It is clear that such Invaders may be punish'd likewise personally, besides the Confiscation of their Moveables; yet the words, with all rigour, should not be extended to death; but by the 4 Act Sess. 2 Par. 2 Ch. 2. The assaulting the lives of Ministers, or the robbing of their Houses, is declar'd punishable by death; and by the 5 Act 1 Sess. of the said 2 Par. The Parochioners are made lyable for the Out∣rages done to Ministers, if the Actors cannot be got.

Observ. 3. From these words, That they may be punished at the In∣stance of the Minister, or any other that will pursue; This Crime is made so far crimen publicum, that it may be pursu'd per quemlibet ex populo, though he be not otherways interested.

Observ. 4. That this Act being only against Invaders of Mini∣sters, it is extended to Invaders of Bishops, and all such as have power to administer the Sacraments, 7 Act Par. 1 Char. 1. In which Act there are many other Extensions of this Law.

* 1.115THe Popish Clergy had right to Lands that were mortifi'd to, or bought by them, and to Teinds which belonged to them as Church-men; The Teinds were call'd the Spirituality of their Benefices, because they belonged to them as Church-men, and the rest was all comprehended under the Designation of the Temporality of their Benefices, and upon the abrogation of Pope∣ry,

the King did begin to erect some of the Temporality of their Benefices in Lordships, which He Dispon'd to several Noblemen, who were most active in the Reformation; Or to these whom He resolv'd to oblige by their Interest, to be active in it, and these were called ••ords of Erection; but thereafter the Parliament re∣solving to fix a constant Rent to our Kings, thereby to preclude the necessity of Taxes, and to ingage future Kings not to return to Popery, they annext the Temporality of all the Church-lands, and Benefices to the Crown by this Act.

Observ. 1. The reason whereupon this Act is founded, is, that the former Kings having mortifi'd a great part of their Revenue to Church-men, and having thereby impoverish'd themselves and their people, it was therefore just, that the ends for which these Mortifications were made, being declar'd unlawful, the Benefices should return; by this reason such Mortifications as were made by privat Families, should have returned to them; whereas here all returns to the King: But in Law these Religious Houses being demolish'd, all ought to have fallen in to the King; for qua nul∣lius sunt ea sunt domini Regis; and these were such, for they be∣longed not to the old Proprietars, since they were once Dispon'd; nor to these Houses, since they were extinguished, and that being found a false Religion, what belong'd to it, did by the Law fall under Confiscation.

Observ. 2. Though all Benefices belonging to Arch-bishops or Bishops, are by this Act annexed, yet they are restored by the 2 Act Par. 18 Ja. 6. And though all Benefices belonging to Chap∣ters are annexed, yet these are restored by the 2 Act Par. 22 Ja. 6.

Observ. 3. From these words in the Clause of Annexation, viz. All and sundry Common-lands bruiked by Chapters of Cathedral Kirks, or whereof they have been in possession as Commonty; That Possessi∣on in Church-lands, is very often repute a sufficient Right, and to be loco tituli, For understanding whereof, it is fit to know, that both before and after the Reformation, a Churh-man being in possession by the space of seven years, though without a Title, has the benefit of a possessory Judgement, so that his Right cannot be quarrelled without Reduction; nor needs he produce a Title, as Laicks are oblig'd to do in possessory judge∣ments, July 18. 1671. Earl of Hume contra the Laird of Rislaw. And if he be thirteen years in possession, that possession is to him in place of a Title, for by a rule of the Chancery (as we believe) docennalis & triennalis possessio habetur protitulo; though I find no such Rule in the Roman Chancery, but yet these thirteen years induce only a presumptive Title, which does not exclude the true Proprietar, if he can instruct that the Benefic'd person possessed either by a redeemable Right, and produce the Reversion, as was found in the case of Francis Kinloch, contra the Bishop of Dum∣blane, July 11 1676. Or by a precarious Right, as was found in

the case of a Minister, who had casten Peits for thirteen years by tolerance from the Heretor, and though there be no difficulty where the Right mortifi'd does expresly bear, that it is Redeemable or Precarious; yet in absolute Rights, there is greater doubt whe∣ther after thirteen years they can be qualifi'd by correspective Ob∣ligations.

The reason of this priviledge given to Church men, is, that they being imploy'd in Divine Matters, are ignorant and careless of their Right, especially since their Rights are not to descend to their own Heirs.

It is fit here to take notice that by a vulgar error triennalis possessio was thought to give the benefit of a possessory judgement, 12 March, 1629. Marshal contra the Laird of Drumkilbo, and decennalis of a pe∣titory, and thus did they interpret the former rule. At the Refor∣mation also the Popish Clergy did either send their foundations to Rome, or did by collusion with the Laicks interested, or in hatred of the Reformed Clergy, destroy their Rights; and therefore by an Act of Sederunt 16 December 1612. It is declared that ten years possession before the Reformation, or 30 after the Reformation, should be a sufficient right either to Church-men, or to the King's coming in their place, by vertue of this Act, and conform thereto the Lords decided July 5 1626. Laird of Kerss against Reid.

Observ. 4. That because the Romish Clergy were put from their Benefices, therefore they are by this Act freed from any warrandice they had given for Church Lands dispon'd by them; and by the 110 Act of the same Parliament, what is here Statuted as to the warran∣dice of Lands, is there extended to Tacks, Pensions, and Assigna∣tions, and so these two Acts are not absolutely co-incident, and the last unnecessary, as they would seem to be, and though this was done in majorem cautelam, yet by the common Law they would not have been liable in warrandice, since no man is liable in warrandice where the eviction proceeded upon a supervenient Statute, for no man can warrand against a supervenient Law.

Observ. 5. That notwithstanding that the Church-Lands are an∣nexed, yet there is a dissolution in the same Act, warranding his Ma∣jesty to Feu any of the saids Church-Lands during his own time.

Observ. 6. That though by this Act all prior Dispositions made of Church-Lands by his Majesty to Lords of Erection are excepted from the Annexation, yet the Superiority of all the Erections both be∣fore and after that Act, are annexed to the Crown, by the 10 Act Par. Ch. 1.

Observ. 7. That the Spirituality of Benefices, viz. their right to the Teinds is expresly declared not to be annexed, but to remain with Church-men as formerly; for though by the 149 Act Par. 13 Ja. 6. it be said that the Teinds of Dumfermi••••g are annexed to the Crown after the form of the Act of Annexation, 1587. by which all the Teinds of the remanent Kirk-Lands and Prelacies of the Kingdome are annexed; yet that Clause is only insert by mistake in my judge∣ment, for that is not the design of the Act.

Where Stock and Teind are promiscuously Feued, it is declared by this Act that his Majesty remains Superior both as to Stock and Teind, the Church-men having only right to the tenth penny of the Feu-duty, the other nine belonging to his Majesty for the temporality being only annex'd to the Crown, and the Teinds being reserv'd to the Church, it was very just that where a duty was payable out of Church-Lands, cum decimis inclusis, the King should only have right to a ninth part of that duty, and the tenth should belong to the Church-man or Titular, in contemplation of the Teinds; but still decimae inclusae are so fully exempted from all Ecclesiastick pay∣ments, that though there be not sufficiency of Teinds in the Paroch, yet decimae inclusae are never burden'd with the payment of Mini∣sters Stipends, though Ministers Stipends be the constant burden of all Teinds; and for the same reason it was found 21 January 1633. that no Valuation could be led of Land Feued, cum decimis inclusis, and not confirmed before this Act, and that Laicks might prescrive a right to them, but not to other Teinds, which shews that decimae inclusae are never lookt upon as Teinds.

For understanding the origine and nature of decimae inclusae with us, it is fit to know that by the Canon Law the Parson or Incumbent and the Paroch Church were founded in the right of all the greater Tithes, called decimae praediales, and that it was not law∣ful for any man to abstract their Teinds from it, cap. de decimis 16. Quest. 1. And albeit the Popes did pretend that since the Bishops had the management of the Teinds, they as universal Bishops might by their supereminent transcendent right appropriat them to the use of Monastries, Monks being the best of the poor, and Teinds being naturally burden'd with the maintainance of the poor; yet our King's who in all the tract of our Parliaments own'd their own Regalia, and the Episcopal Order against the invasions of the Popes, did by the 7 Act, Par. 2. Ja. 4. declare it a point of Dittay, that is to say, Criminal for any man, to take a right of Teinds from any, save the Parson, Vicar, or their farmers, so far they acknowledg'd the Parochial Churches to be founded in their right to the Predial Teinds.

Notwithstanding whereof, the Popes to get the Monks to de∣pend immediatly upon them, did grant to those Monks, exemp∣tions from payment of Tiths, for they as well as others paid to the Parson or Incumbent, till Pope Paschal the 2d granted those exempti∣ons, but these exemptions did thereafter so far diminish the provision of the Parson (very many Lands, being either mortifi'd to them, or bought in by them) that Theodosius and other Emperours were forc'd to make Laws against exorbitant Mortifications; and Pope Adrian was forc'd to limit the exemptions to four Religious Orders, Ci∣stertians, Hospitalers, Templars, and Knights of St. John; still al∣lowing all of them Exemptions for their Novalia or Lands, first cul∣tivated by themselves; But Pope Innocent the third, in the Late∣ran Council, thereafter ordain'd, that even these four Orders should pay Tiths for what Lands they should acquire after that time;

which I, the rather observe, because it has been decided by our Ses∣sion, July 15. 1664, Thomas Crawford contra Prestoun Grange; that Lords of Erection succeeding in place of the Cistertian Monks, should be free from Tiths, as the Monks were without adverting whether these Lands for which exemption was pleaded, were be∣stow'd on their Monastries, after the year 1120. and it seems that this Exemption should not be allow'd to these Monastries, since they were not allow'd to the Temple-lands with us, and that such priviledges are due to neither, because this was a personal privi∣ledge given to the Monks, as the Poor, and so should not de∣scend to the Lords of Erection. The Monks being thus Masters of many Tiths, feu'd out their Lands and Tiths promiscuously, for the encouragement of the Labourers, who have alwayes thought it a loss and a slavery to wait till their Tiths be drawn.

Laicks also enjoy'd Tiths, and alienated them as their own He∣retage, for many ages together, it being generally believ'd, as Selden contends, that the Tiths were not due to Church-men, they having Right only to a Maintainance, jure divino; though others ascrive these Laical Infeudations to a corruption begun by Charles Martel King of France, who to gratifie and pay such as were to assist him in the Holy War, Dispon'd to them the Tiths consentientibus Episcopis, who knew that if the Saracens prevail'd, Religion would be destroy'd, and he promising to restore them; But after this time it is undenyable that de facto, Teinds were Dis∣pon'd to, and by Laicks, till the Lateran Council 1169. in which the Canon was made, prohibemus ne laici decimas cum animarum sua∣rum periculo detinentes in alios laicos possint aliquo modo transferre. Si quis vero perceperit & Ecclesiae non reddiderit Christiana Sepul∣tura privetur; But yet before that time, Laical Infeudations were Discharg'd, per Concilium Turon: 1096. Though we in this Nation consider only the Discharge, in the Lateran Coun∣cil.

It remains clear from these Informations, that our decimae in∣clusae, are in effect the same with the decimae infeudatae in the Ca∣non Law, and these are call'd decimae inclusae, where the Stock and Teinds were never separated, but were feu'd joyntly before the Lateran Council; but yet it seems that all decimae infeudatae, are not esteem'd inclusae with us; for in a Case betwixt Monimusk and Pitfoddels, Teinds were found not to have the priviledge of decimae inclusae, though Transmitted by Infestments, and call'd de∣cimae inclusae, because there was separat a Reddendo, paid for the Teind and Stock, and so it could be known to be different from the Stock, albeit it was contended that decimae inclusae and infeu∣datae, were pares termini, and a different Reddendo did not evince that the Teinds had ever been separated from the Stock, but only that there was a different Duty, as is in Lands of the same hold∣ing oftimes, and it may in general seem strange, why we should add, since the Lateran Council, for that Council did find that

Laicks before that time were incapable of any Right to Teinds; and therefore all Feus of Teinds, whether before the Lateran Council or after, should be null, and this Error it seems has been occasion'd by our concluding, that because Laicks were declar'd uncapable of them by that Act, therefore they were capable of them before it; and yet with us a Laick cannot prescrive Teinds, because he is not capable of them; and Balsour tells us a Decision wherein not only alienations of Teinds, but even Tacks of Teinds for three nineteen years, were accounted alienations, and so null, for else Discharging alienations might have been eluded by setting long Tacks: But now Teinds pass by Infestments, as the Stocks does, since the Surrender, and His Majesties Decreet thereupon, wherein every man may buy his own Teinds, and so may set as long Tacks of them as he pleases, or Feu them out cum decimis inclusis.

But it may be alledg'd this tenth part payable to the Ec∣clesiastick person for Teinds, may be made liable to Ministers Sti∣pends, since this tenth part must be constructed as Teinds, and so should be lyable to all the burdens of Teinds; but to this it is an∣swer'd, that these decimae inclusae are consider'd as a part of the Stock, and so no more liable to Ministers Stipends than the Stock is; this division of the Feu-Duty doth not alter the nature of the decimae inclusae, but is only insert to regulate the way of payment of the Feu-Duty, even as if after a Feu granted of Stock and Teind pro∣miscuously for a Feu-Duty, the Church-man should dispone nine parts of the Feu-Duty, and reserve only the tenth to himself, that tenth part could not be liable to Ministers Stipends. 2. Since this Act by the death of the Titular both Temporality and Spirituality came in his Majesties hands, and so were dispon'd to the Lords of Erection, and return'd to them without this distinction of nine or tenth parts.

Though by this Act Teinds are declared the Spirituality of Bene∣fices, yet they may be sold, and are appointed now to be sold by the Parliament 1633. and the Heretors are to be infest in them as in their other Lands, which seems inconsistent with their being the Spirituality of Benefices, and the Patrimony of the Church; but it may be answer'd, that they are even in that case burden'd with pay∣ment of Ministers Stipends till they be competently provided.

Observ. 8. By this Act all Lands and others mortified to Colledges, are excepted from the Annexation, and the reason is, because Kirk-Lands remain still to be such, albeit they be mortifi'd to Colledges, 12 Feb. 2635. Tock contra the Parochiners of Achtergoven, and there∣fore it was necessary to except them. Maisons Dieu, or Hospitals are also excepted, and Maisons Dieu are Hospitals dedicated to the ho∣nour of GOD, it is a French word signifying the House of God; the Canon Law calls them Domus Dei, and makes them Hospitals.

Observ. 9. Pensions likewise out of Church-Benefices are ex∣cepted, if they be authorized either by Decreets, or Possession, but possession of a part is repute possession of the whole; and by

the 137 Act 12 Par. Ja. 6. this Act is ratified, and it is declared that all Pensions out of the Spirituality or Temporality, neither clad with Decreet nor Possession in the Prelats lifetime who dispon'd the same before this Act of Annnexation, shall be null, but if they be clad with possession in manner foresaid, they are valid against singular Successors, though Pensions granted by Laicks are not va∣lid, albeit they be clad with possession prior to the singular Suc∣cessors right, as was found the 11 of December, 1662. Clappertoun con. the Lady Ednem; but by the Act 140 Par. 12 Ja. 6. Pensions granted by Church-men should contain the particular names of Ten∣nents and Duties, vid. observ. on the 62 Act of this Parl.

Observ. 10. By this Act it is declared that the Bailie or Steward of the Regality shall have the same power he had before to repledge from the Sheriff, or Justice-general, in case he hath prevented the Justice-general by apprehending or citing the person before he be apprehended or cited by the Justices, but if the Justices have pre∣vented, as said is, then the Bailie of the Regality, or Steward, shall not have power to repledge, but he may sit with the Justice-general if he pleases, so that in effect by this Act there is this difference be∣twixt the Ecclesiastick and Laick Regalities, that there is a right of re∣pledging competent to the Laick Regalities, whereas Ecclesiastick Re∣galities have not this priviledge except they prevent the Justices, but otherwise the Bailie of Regality may only sit with them; the reason of which difference is, that the Regalities having been only granted in favours of the Religious Houses, which were supprest, the Regalities became extinguish'd with them, and his Majesty having ex gratia only reserved their Offices to the Lords of Erection, he thought that they were abundantly gratified by this new Concession, without allowing them the power to exclude his own Justices, in case of pre∣vention; and this was also a favour to the Lieges in not troubling them with two Courts, nor were the Lords of Regality much pre∣judg'd, for by this same Act they retain the whole right to the Es∣cheats and Fines, even of these who are condemned by the Ju∣stices.

Observ. 11. That the Parliament has been so careful of the Vassals and Feuers of Kirk-Lands, that because the King who is declared Superior by this Act of all these Lands was a more powerful oppo∣site: Therefore by a Clause in this Act it is provided that the King shall not quarrel their Rights to these Kirk-lands, save by Improba∣tion, or by a Reduction only for a diminution of the old Penny-mail, de liquido ad liquidum, that is to say, that though such rights may be quarrelled as granted with diminution of the Rental, or by un∣lawful conversion, yet no diminution shall reduce their Feus, ex∣cept where the diminution is of old Rentals, because about the time of the Reformation Feus were granted for high Feu-duties, and these being renewed again for less than were once payed, the Feu might have been question'd, because though the Feu-duty was less than was once payed, yet it was not below the old Rental, de liqui∣do in liquidum, as if five Merks were taken when ten was of old

payed, without consideration of Conversions, so that though ten Merks were taken in the Feu quarrelled in place of ten Bolls, that would be no relevant reason of Reduction, and since by the Act of Parliament, 1633. Erections are annex't to the Crown: The Lords found that the Lords of Erection cannot now pursue Reductions or Improbations of their Vassals Kirk-lands, and that his Majesties Ad∣vocat could not insist in any such actions, except he had an express warrand from the King, though it would appear that this Act is a sufficient warrand to pursue Improbations or Reductions for dimi∣nution in the terms of this Act, 24 of June, 1664. Laird of Prestoun contra Nathaniel Ebred.

Observ. 12. That Lands belonging to the Benefices of Laick Pa∣tronages, are excepted also from this Annexation, by which are meant only such Laick Patronages, as were lawfully establisht be∣fore the Reformation, and not such as were Dispon'd by the King to Laicks, and to which he had Right, as coming in place of the Pope, who was Universal Patron in dubio, before the Reforma∣tion, for these are still accounted Ecclesiastick Patronages, since they were so originally, and so ought not to have been excepted from this Act, but whether all the other Patronages, which be∣longed formerly to Monasteries, were annexed to the Crown by this Act, was fully Debated, November 1677. in the Case of Steuart contra the Laird of Watertoun; and that they were annex∣ed, was urg'd, because by the first words of this Act, the Ab∣bacies, &c. and all Profits, Emoluments, whatsoever belonging to them were annexed, and there being nothing that the King and Parliament was more concerned in, than to have the Patronages depend upon the Crown, thereby to prevent the influence that Schismatick privat Patrons might have; It was most reasonable to think, that when all things belonging to Monasteries, were an∣nex'd, these should have been annex'd. Likeas, Sir Thomas Hope among other Rights crav'd to be reduc'd, crav'd likewise that all the Rights made to the Lords of Erection of the Patronages belonging formerly to Monasteries, should be reduc'd as contrary to this Act, upon which Reduction the Lords of Erection did sub∣mit their Rights to these Patronages, and in the Kings determi∣mination upon that Submission, His Majesty determined that the Lords of Erection should have only Right to the converted prices of their own feu Mails, and feu Ferms of their Superiorities, &c. It was likewise there contended, that the saids Patronages were like∣wise annexed by the 13 and 14 Acts of the first Parliament Ch. 1.

To which it was answered, That Patronages were never annex∣ed as parts and pendicles, but where it was design'd they should be annexed, they were still annexed per expressum, as in the an∣nexation of the Abbacy of Dumfermling, Act 189 Par. 13 Ja. 6. and it were absurd to think, that since the foresaid general Clause did annex things of the meanest consequence, such as Service of Tennents, &c. that it would have omitted things of so great con∣sequence,

as were the Patronages of many Monasteries; nor did any of the Leiges who had Right to such Ecclesiastick Patronages from the King, crave ever a Dissolution of them in Parliament, which certainly they would have done, if they had looked upon them as annex'd, nor were they annexed by the 13 and 14 Acts Par. 1 Ch. 1. Because these Acts do not mention Patronages per expressum, nor can they be comprehended under the general word, pertinents, exprest in these Acts, for the reasons foresaids, and to evidence that His Majesty had determined nothing as to the Patronages belonging to the Lords of Erection, His Majesty does in the 1 Parliament 12 Act Ch. 2. express these words, Likeas, also the the remanent points of our said Commission anent the patronage of Kirks, &c. are not yet begun to be Treated; therefore, &c. This Debate came not to a Decision.

What the condition of our Teinds is since this Act, shal be Treated fully in my Treatise of Teinds, as also whether the Ob∣ligation of paying Teinds proceeds from the Moral, Ju∣dicial or Common Law is not agreed to, but the most ordinary opinion is, that they are due to Church men, before any po∣sitive Law, and the quota. of Tenths proceeds from positive Law, and D. Thomas part. 3. Quaest. 6. makes the Tenth to be due, be∣cause as all Digits under ten, are imperfect, and do tend to ten as their perfection; so man being naturally lost, we pay our Tiths to these Ministers by whom our perfection comes; and thus some School-men conclude, that Tiths flow from the Moral Law, in so far as they are a necessary Maintainance for Ministers, from the Ju∣dicial Law, in so far as concerns the number of ten, and Ceri∣monial in so far as concerns the foresaid Typicals, nor can it be de∣ny'd that Abraham paid Teinds (before any positive Law (to Melchisedeck, though the Learned Selden Interprets this place only to be the Tenths of what was taken by the War, and that from Jo∣sephus and from Heb. cap. 7. v. 2. and the Greek word there us'd, does properly signifie spoils, call'd by Sulpitius Severus deci∣mam praedae but yet I see not why that alleadg'd Custom among the Jews, of giving the Tithes of their Spoils, could have proceeded from any other ground, than that which was common to all Tithes, nor can I believe Selden, who asserts that Tithes were not paid in the primitive Church, till the days of St. Augustin, and S. Ambrose, for if we do not controvert the Truth of all Authority, we will find the payment of Tithes much older.

Teinds were likewise accounted Spirituality by the Canonists, vid. Rebuff. Quaest. 2. num. 9.

How these Teinds came to belong to Monastries, may be doubted, since naturally the Curats of the respective Parochs, are founded in jure communi quoad the Right to their predial Teinds, so that they need not prove their Right thereto, and this was very just, because they having the Cure of Souls ought likewise to have had that which was given as an encouragement of that Cure; and though to this the ordina∣ry

answer be, that the Pope who had only Right to alienat such Teinds, did use to give them to Monastries, nam licet ille jus divinum tollere non potest tamen modificare potest, yet I conceive that our Kings, and even our Laicks, with the consent of our Kings, did think they could bestow the Teinds belonging to these Kirks, whereof they were Patrons upon Religious Houses, whereof I have seen very many Instances in our old Charters, one whereof, I shall set down for an Example, Alexander Dei gratia Rex Scotorum, &c. Sciant tam posteri quam praesentes nos concessisse, &c. Deo & Ecclesiae san∣ctae Mariae de Dryburgh Ecclesiam de Lanarch (now Lanerk) cum terris, & decimis & omnibus rebus juste ad illam pertinen∣tibus.

Item, How the other Church-lands became first to belong to Monastries, I shall God-willing clear in an express Treatise con∣cerning Kirk-lands and Teinds.

THis Act is Explain'd in the former Revocations,* 1.116 only here the Fees, and Pensions granted to the Officers of the Crown are excepted from this Revocation, and the Officers of the Crown are declar'd to be the Thesaurer, Secretary, the Collector (which Office is since joyn'd to the Thesaurer) the Justice, that is to say, the Justice-General, Justice-Clerk, Advocat, Master of Requests, Clerk of Register, and the Director of the Chancellary, the Di∣rector of the Rols is but his Deput: The Order wherein they are set down, makes the Advocat to preceed the Register, and though the Justice Clerk be named before the Advocat, yet that is only because in all this enumeration, these of one Court, are still set together, and therefore the Justice, Justice Clerk, and their Deputs, are still set together; but it would appear that the Justice-General should by this preceed both the Register and Advocat; But by Ch. 1. His Revocation, which is the 9 Act of his first Parliament, the Register and Advocat are rank'd be∣fore the Justice and Justice-Clerk, & posteriora derogant prio∣ribus.

Nota, The Privy-Seal and Thesaurer-Deput, are not here mark∣ed, though they be both Officers of the Crown; The Preceden∣cy amongst the present Officers of State, was by Act of Coun∣cil, February 20. 1623. thus determined, Lord Chancellor, Lord Thesaurer, Lord Privy-Seal, Lord Secretary, Lord Register, Lord Advocat, Lord Justice-Clerk, Lord Thesaurer-Deput, by Act of Parliament, 1661. the President of Session was then, and not till then ordain'd to preceed the Register, Advocat and Thesau∣rer-Deput, and the Register and Advocat then were ordain'd to preceed the Thesaurer-Deput.

By this Act of Revocation, all the Exceptions in any former Acts are likewise Revocked; but under this part of the Revoca∣tion, do not fall the Exceptions in the former Act of Annexati∣on, for King James was then major, and though he had not been major, yet these Exceptions being made by a publick Law, it may be said that publick Laws cannot be taken away by a Revocati∣on; for the Revocation is but a privat Act of the Kings, where∣by His Majesty secures Himself against privat Deeds done by Him∣self in His Minority, but not against what He consented to as pub∣lick Laws.

By the last Clause of this Act it is provided, that his Majesty shall not be prejudged by suffering any party to possess any Lands, or o∣thers fallen under the Revocation, but that his Majesty may put his hand thereto at any time, but any obstacle, by the first part of which Clause it is not meant that prescription shall not be valid a∣gainst the King, but only that the possessors shall not have the bene∣fit of a possessory judgement; and by the last Clause it appears that our King's having revock'd, they needed not intent Reducti∣ons ex capite minoritatis, but may brevi manu intromet with what falls under Revocation, even as they may do in their annex't pro∣perty; for this same Clause is like to that contain'd in the Annexa∣tion, Ja. 2. Par. 11. Cap. 41. and which is repeated in all the other Acts of Annexation: See Observ. upon that Act; but it is more rea∣sonable to think that the King needs no Reduction, because he must prove Lesion in case of Reductions ex capite minoritatis; but the King needs prove nothing in the case of Annexation, yet our King is still in use to pursue Reductions, and not summarly to dispossess these who have right.

* 1.117WHilst our Parliaments grew very factious in the time of Q. Mary, the Popish and Protestant Party contending who should prevail in Parliament, the Popish Clergy, who were very numerous in Parliament, since all the Bishops and Miter'd Abbots did sit there as Church-men, each of them who had Lands and He∣retage craved two Votes, one as Church-men, and another as Ba∣rons: To prevent which for the future, this Act was made, dis∣charging any of the three Estates to take upon him the Office of all the three Estates, or any two of them, but the following words are not so clear, viz. That every man shall only occupy the place of that self same estate wherein he lives, and of which he takes the style, which was designed to keep Barons who could not get themselves chosen to re∣present their Shires from being chosen as Burgesses of Parliament, though they were Provosts, or Magistrats, as they then ordinarily were; and by it also a Burgess who is ordinarily so design'd, may be debarr'd from being chosen as a Baron of a Shire: This Act was long in Desuetude, but of late by Acts of Burrows all Burgesses are discharged from electing Gentlemen, to represent them in Par∣liament, under the pains specified in these Acts; for they found that Gentlemen did not adhere to, nor understand the true interest of

Burghs; and the King found that none desired to be so elected, ex∣cept such as had private designs, albeit upon the other hand▪ it is represented that this is the way for Burgesses to have their interest maintain'd by Lawyers or able States-men, either of which they may choose; and the people of England, who are very jealous of their priviledges do choose such, by which likewayes their Parliament is so considerable, and their Laws are made by so judicious Lawyers. But by an Act of the 3 Par. Ch. 2. it is determin'd that only actual Trading Merchants can represent Burghs-Royal in Parliament; and that Act was founded upon an express Decision of the Session.

THe unlaws for absents from Parliaments here set down are 300 pounds for every Earl, 200 pounds for every Lord,* 1.118 100 pounds for every Prelat, and 100 Merks for every Burgh, but there is no penalty appointed for Barons, and I think that they are comprehended under the word Lords, for the Lords and Barons make but one State of Parliament, and Laird is but a corruption of the word Lord; of old 10 pounds only was the unlaw or amerciament, as is to be seen by the Preface of all the Acts of Parliament, which bears ordinarly these words, alii vero quasi per contumaciam se absenta∣verunt quorum nomina patent in rotulis sectarum quorum quisque adjudi∣cabitur in amerciamento decem librarum.

THis Act appointing every State of Parliament to have three Apparels, conform to a pattern to be made,* 1.119 was not made that every man might have three several Habits, but to the end each distinct Estate might have a special Habit, and yet Barons nor Burgesses have as yet no distinct Habit for Parliament.

FOr understanding this Act appointing the number of the Lords of Articles in every State to be equal,* 1.120 and that the most shall not exceed ten, nor the least be fewer nor six, it is fit to know that by the 1 Act, 3 Sess. Par. 1. Ch. 2. The Lords of the Articles are ordained to be elected and constitute in manner following, viz. the Clergy choose 8 of the Nobility, the Nobility 8 of the Clergy, and these sixteen so elected, or such of them as are present do choose 8 Barons, and 8 Burgesses, to whom are added the Officers of Estate, and the Chancellor Presides: And the Articles being so constitute, do prepare Laws, Acts, and Overtures, and orders all things re∣mitted to them by the Parliament.

BY the 135 Act, Par. 7. Ja. 6. no Advocat could plead in Re∣ductions of Forfaulters without a licence,* 1.121 which is abrogated by this Act; but because this Act gave leave only to persons accused be∣fore the Parliament to have Advocats without licence, therefore by the 90 Act of this Parliament Advocats are ordained to plead in all Criminal Cases, and they do so upon Supplications. This craving a Licence was founded upon 98 Act, 14 Par. Ja. 3· vid. crim. ob∣serv. tit. Advocats.

* 1.122THis Act is fully cleared, crim. observ. Tit. Jurisdiction of the Parliament.

* 1.123IN this Act the King promises to do nothing that may prejudge the liberty of Voting and reasoning, but yet if any person should offer to argue what is down-right Treason, this Act would not de∣fend him, for by voting and reasoning jointly may be inferred that that reasoning is only allowed, which relates to a stated case, and to be put to the Vote, and nothing that is treasonable will be allowed to be stated in order to a Vote.

* 1.124THis Act discharging all contention for priority of place, relates only to Parliament, and the disturbance thereof, but by a Decreet of Ranking, in anno 1606. his Majesty having ranked the Nobility, has commanded them to observe the Precedency there as∣signed in all places, and that under the pain of being punishable as contemners of his Authority.

* 1.125THough by this Act all actions of molestations are ordained to be pursued before inferiour Judges, as being naturally but actions for cognoscing of Marches, where the controversie being facti, can best be understood upon the place, yet now such actions are ordinarlie pursued before the Lords, because there is a Declara∣tor joyned with the molestation, for the Pursuer Libels, that though such Lands be his Property, yet he is molested in the possession there∣of; and the reason of this Invasion is, because Declarators of Pro∣perty, as all other actions concerning double Rights, can only be pursued before the Lords of Session.

The form prescribed to molestations by this Act, is, that the Lords shall direct Letters to the inferiour Judges upon 15 dayes warning, who shall continue their Courts from 8 dayes to 8 dayes, and these inferiour Judges having discust the points of Law, they shall choose an Assize, the most part whereof shall have 4 Ploughs of Land, or 300 Merks of yearly Rent in the same or Neighbouring Parochs, if there be mutual pursuits, the Judge shall discuss both together, and choose an Assize out of the Assizes cited by either party equally, and the Odd-man to be choos'd by Cavil; if the Judge or∣dinar be suspect, the Lords shall grant Commission by their own Act, or by a Commission under the testimony of the Great Seal to unsuspect Judges.

This form is still almost in observance, only the Lords in dubi∣ous cases grant Advocations to themselves where the Judge is suspect, and after the Cause is debated, the Lords ordain the Ground to be visited by some of their own number, or grant Commissions to o∣thers, if the Lands ly very remote, but these Commissions under the testimony of the Great Seal are absolutely in Desuetude.

If the most part of the Inquest be not clear, the Lords find that in that case the Cause should be Advocat to them as the Supream Court, and they will judge according to the probation already taken, or will grant warrand to cite new Witnesses, as they did 21 July, 1675. Walstoun contra Cheislie. Though this Act appoints the Inquest to be chosen of Landed-men, having 4 Ploughs, or 300 Merks, and that in or near the Paroch where the contraverted Land lies, yet the verdict will be sustained though they have not so much and though they dwell not in that Paroch, albeit there be such in the Paroch. This was formerly appointed §· 14. c. 74. lib. 2. R. M. where such cognitions are appointed to be per fideles homines de viceneto. And Skeen there observes, that Perambulati∣ons differ from Molestations, in that Perambulations are petitory Judgements, and concern Property, but Molestations are only pos∣sessory Judgements, though both tend to the tryal of Marches.

Nota, That by the last Clause of this Act, the Members of the Colledge of Justice are exeemed from Tryal before Inferiour Courts, which was formerly granted in Removings, p. 6. c. 39. Queen M. and is here extended to all Causes according to old accustomed use; and though it was alleadg'd that thir last words were re∣strictive, and so the Members of the Colledge of Justice could not Advocat their Causes from Inferiour Courts, except in such Cases only as they could prove old use and wont; yet these words are found Exegetick, and to be equivalent, as if the Act had said, because of old accustomed use, granting them that priviledge, and this was very reasonable, for since they are oblig'd to attend the Lords, and their Clients, the Citing them before Inferiour Courts had been inconsistent with both.

The Action of Molestation is the same with us, that finium re∣gundorum was by the Civil Law, and what can stop Perambula∣tions in our Law, are set down, Statut. David 2. cap. 20. where amongst other things, it is observ'd, that a Minor is not oblig'd to Defend in Perambulations, and this is the only place in our writ∣ten Law, where that old Maxime is to be found, minor non tene∣tur placitare de hareditate paternâ; and yet it seems that a Mole∣station being declar'd by this Act to be judicium possessorium, a Mi∣nor should be oblig'd to Defend in this, as he is in all other pos∣sessory Judgements; but the reason of this Exception in Molesta∣tions, seems to be, because ordinarly Molestations resolve in Decla∣rators of property, or are joyn'd with them.

BY this Act the Defender is indefinitly to pay the Expence of the Obtainer of the Decreet, at the modification of the Judge,* 1.126 vid. Act 110 Par. 7. Ja. 5. But though this Act be general, yet statutum quod disponit simpliciter ut victus victori in expensas sit con∣demnandus, hunc sensum admittit, si non habuerit justam litigandi causam, hic quippe sensus juri communi est conformis & rationi conveni∣ens, Voet. de Statut. Sect. 7. cap. 2.116.

BY the first part of this Act the Lords of Session are made Judges to the Interpretation of the Act of Oblivion;* 1.127 whereas by the Act 67 Par. 9 Q. M. several particular persons were named for that effect. There is an unprinted Act, saying, that because seve∣ral of the Lords were dead, and that because many legal actions a∣rose upon the Indemnity, therefore this Act was necessary.

By the second part of this Act, nine Lords of Session are suffici∣ent to be a Quorum, and which is now observ'd, though by the 57 Act 5 Par. Ja. 5. ten Lords with the Chancellor or Pre∣sident at the first Institution, were necessary to make a Quo∣rum.

* 1.128THis Act is fully Explain'd in the 78 Act 9 Par. Queen M. ex∣cept in so far as concerns the Obligation laid by this Act upon the Notars, to bring their Prothecals to the Lords of Session, and which are to be kept by the Clerk register and his Deputs; these Prothecals are the Book, wherein Notars set down the Breviats of what Instruments they take, & protocollum est memorialis tabellionis scriptura qua in codice aliquo gestus acti substantia breviter adnotatur vid. gloss. in Novel. 44. de tabel. the reason why they are ordain'd to be brought to the Register, is, that false Papers may be hereby try'd, and lost Papers may be made up, for if an Instrument be lost, the person in whose favours it was at first made, may raise an Action before the Lords, craving that it may be made up out of the Notars Prothecal, and this being nobilis officii, cannot be done before inferiour Courts, Vid. 22 Act 22 Par. Ja. 6.

Upon the 19 of February 1680. The Lord Register con∣tra Sir William Primerose It was found that the Registers De∣put, called the Clerk for the Notars was Deprivable, for not calling in the Prothecals of Deceassed Notars, by the space of five years, to which the Lords found him actually oblig'd, though it was alleadg'd, that by these Acts he was only oblig'd to receive the Prothecals, when they were brought in, but not to call for them, nor was it possible for him to know when Notars dy'd, and therefore by this Act, Sheriffs, &c. are ordain'd to acquaint him of the Death of Notars, within their Jurisdictions, for it was urg'd that the Obligation to bring in the Prothecals, being committed to this Clerk, and he being only intrusted with it, the Act would be elusory, if he were not oblig'd to do Diligence, since none else could do it, and he might easily inform himself, at least once a year.

It was also Debated, that by this Act the Clerk to the Notars was oblig'd to understand sufficiently the Office of Notary, though it was answer'd that he was no further oblig'd than to draw a Bill for their admission, and the Clerks of the Session are not oblig'd to understand the Civil Law, which they are oblig'd to Mi∣nut.

MEssengers being grown too numerous,* 1.129 therefore by this Act they are restricted to 200. comprehending the seventeen He∣raulds, Macers and Pursevants in that number; which number is here divided amongst the Shires, but the number is now increas'd contrary to this Act, and to the great loss of the people.

The Lyon is Constituted by this Act sole Judge to the faults com∣mitted by Messengers, and to their Cautioners, whom they find for their good behaviour at their Entry; which power is Ratifi'd by the 125 Act 12 Par. Ja. 6. And the Lyon with his Brethren He∣raulds are declar'd Judges to all the Malversations of Messengers in their Offices by the 21 Act 3 Sess. 2 Par. Ch. 2. by which Act, though the Malversation of the Messenger be punishable by the Ly∣on; yet he has not power thereby to determine upon the Dam∣nages done to privat parties by Messengers, and to determine a∣gainst the Messenger or his Cautioner, for the sums for which the Messenger should have us'd Execution, albeit the Lyon has privat Ratifications from the Parliament, with this priviledge, vide June 27. 1673. Heriot contra Corbet.

BY this Act all Supersederies are discharg'd,* 1.130 for Protections against Execution of the Law were so call'd then. This Act is renew'd, 13 Act 23 Par. Ja. 6. By which the Granter is declar∣ed lyable for the Debt, and by the 9 Act 3 Par. Ch. 2. These Acts are Ratifi'd; and because the last Act related only to the Session, therefore the Privy Council, Session, Commissioners of Justiciary, and Exchequer, are declar'd lyable, if they grant Protections, except to such as are Cited to answer before them; and so the Act protects not pursuers, for they are not Summon'd; and if pursuers were protected, any man might raise a summons and thereby grant himself a Protection; but yet if the interest of the Common-wealth require that a Crime be prosecuted; I think they may after inquiry, secure the pursuer during the dependence; for though His Majesties Advocat may pursue without an Informer, yet an Informer helps much.

Albeit that Act Discharges the granting Protections, and makes the Granters lyable; yet the Contemners of the Protection are punish'd; and a Writer to the Signet was Suspended in November 1678. for causing apprehend a person, notwithstanding of the Lords Protection; albeit it was there alleadg'd, that though Pro∣tections might be granted by the Lords, upon depending Pro∣cesses, yet these Protections could not extend to secure them against delivering of Papers, which are in their own power; and though a Protection granted by the King for Debt, does not secure against things that are in the Receivers own power, as Exhibition of Pa∣pers, &c. yet if either the King or the Lords grant expresly Pro∣tections against all Cases whatsoever, then it will secure even a∣gainst such Exhibitions, until the same be expresly re-called,

though it seems that by that Act, Judicatures have only power to grant Protections to such as are Cited before them, during the time wherein they may come and return to obey the Judicature, in cases wherein their personal presence is necessary for the Administration of Justice, not exceeding a month in all. It is also clear, that even the Defender may be apprehended, if he get not a Protec∣tion, for this Act does not protect, but is only a warrand for granting one. And there is lately an Act appointing Protections that pass under the Kings Hand, to pass the Great Seal, per sal∣tum.

The Council to prevent the granting of Protections, whereby the privat interest of the Subjects was so much destroy'd, and the execution of Law eluded, did by an Act in January 1678. and sign∣ed by all of them, declare that whoever voted to any such Protec∣tions, should be lyable to the Debt; to elide which, they there∣after changing the name of Protections, granted Licences to per∣sons to stay in the Countrey free from all Execution, and there∣fore the King by His Letter in July 1679. did Discharge the Coun∣cil to grant any Licences or Protections, except conform to these His Laws; and the 9 Act Par 3 Ch. 2. Ordains all such Licences, Protections, &c. to be sign'd, and the Signers to be lyable, &c. It may be likewise doubted, whether the Commission of the Kirk can grant Protections, since there is only allowance by this Act granted to the Privy Council, Session, Exchequer and Justice Court, but since the 61 Act 1 Par. Ch. 2 Declares that the Acts, Decreets and Ordinances of that Commission shall have the strength of the Acts and Decreets of Parliament, they are really a Commission of Parliament: And therefore as the Parliament can grant Pro∣tections, so can they, especially since without this they cannot ex∣erce well the Jurisdiction intrusted to them by the Parliament, and it seems inherent in all Courts, that they should be able to pro∣tect all whom they Cite; and it is clear by this Act, that the Su∣pream Courts of Scotland have power before this Act of Parliament to grant Protections: for this Act reserves only their former power, but grants them no new power.

These Protections are thought the same with the induciae moratoriae, granted by the Civil Law l. 4. C. de precibus Imperator. &c. which are not valid by that Law, nisi idonea fideijussio super debiti solutione praebeatur. But I think these to be rather Suspensions, and that Cau∣tioners in Suspensions with us arose from this.

* 1.131THis Act anent Teinding of Corns is Explain'd fully in Act 73 Par. 6 Ja. 6.

* 1.132BY this Act he who accuses another for Treason, and proves not, commits Treason.

Observ. This is only in case of malicious accusation; for the Act says, That malicious accusers, &c. and therefore if the pursuer had probable grounds for his accusation, he seems not to incur the ha∣zard of this Act.

Observ. 2. That though the Act says, Whoever accuses; yet the Kings Advocat runs no such hazard, for he accuses ratione officii; but to prevent this, he gets alwayes in Treason a warrand from the King or Council, upon Reading the Depositions of the Witnesses, taken by way of Precognition, or else he has an Informer, who finds Caution to insist, sub poena talionis.

Observ. 3. That the pursuer is only lyable, if the party calum∣niat be call'd, accus'd, and acquit, therefore the Accuser repent∣ing and not insisting, it seems that he will not be lyable in this pain; but for not insisting, he will be only lyable in the sum under which he has found Caution, and possibly in poenam arbitrariam, if malice appear; and yet it may be urg'd that he should be lyable to the pain of Treason, since not insisting was the pursuers fault, and no man ought to have advantage by his own fault, nam qui dolo desiit p••ssidere pro possessore habetur.

Dub••••atur, If this Act extends to such as pursue only Statutory Treason, and sure it does not, if they pursue not the same as Trea∣son, though upon the event it may prove so.

It may also be doubted if a Witness who has Deponed against a man in a previous Tryal, as guilty of Treason, and thereafter Depons he knows nothing of it, commits Treason: for this wrongs the party as much as an accusation; yet if this Deposition was not emitted ultroneously, but on a Citation, it cannot be call'd an accusation, nor punisht as such; but it seems punishable by Death, by l 1. in prin. ff. ad L. Cor. de fals.

LAnded men Convict of Theft, Reiff, or Reset, commit Trea∣son.* 1.133

It may be doubted if an appearand Heir be punishable in that case as a Landed man; or if a person once a Landed man, but de∣nuded, be lyable.

Though Landed men may be thus punished as Traitors, yet they are ordinarly pursu'd for single Theft, and the Kings Ad∣vocat does restrict his Libel to ordinary Theft. But because it may be punishable as Treason, therefore the Lords Advo∣cate Thefts against Landed men, though the Libel bear only single Theft.

THe murthering any person who is under the trust, power, or assurance of the slayer, commits Treason.* 1.134

Assurance is extended to such as we have invited to our house▪ or such as we are under trysting and capitulation with.

This Act is likewayes extended to Husbands killing Wives, Bairns, Servants, & e contra.

* 1.135THis Act determining what is Usury, is explained in my Crimi∣nal Pract. Tit. Usury,

* 1.136THis Act declares that such as exact other Customs from the peo∣ple than what is warranted by express Law, or express war∣rand, or immemorial possession, shall be punished as oppressors.

It is thought that possession for 40 years is equivalent to imme∣morial possession, and warrands such exactions, by prescriptions.

* 1.137SHips transporting Victual are confiscated, and the Masters and Clerks imprisonable during pleasure. This is now abrogated, for it is lawful to transport Corn even without a warrand from the Exchequer, except where the same is discharged by special Procla∣mation because of Dearth.

* 1.138THis Act discharging the eating of Flesh in Lentron is in Desuetude, tho till of late eating of Flesh was discharged without a previous warrand under the hand of the Clerks of the Privy Council.

* 1.139THis Act appointing the slayers of Deer, Cunnings, &. to be punished as Thieves, is explained crim. pract. Tit. Theft, num. 15.

* 1.140BEcause the people were oft times mistaken in executing their Brieves Legally, through the difference arising from several Ju∣risdictions, therefore some places are here appointed to prevent mistake, and a General is subjoined, appointing Brieves to be exe∣cuted either at the head Burghs of Shires, or Stewartries, or where Brieves were most usually served.

From which last words it may be observed, that Executions are sufficient, though they be not at the real head Burghs, if they be at the place where they used to be executed; and thus Executions at Dunce were sustained for the Shire of Berwick, though Greenlaw was really the head Burgh by the Erection; and Executions of a Warning were sustained though not at the right Paroch Church within which the Lands lay, since it was executed at the place at which Warnings used to be executed, 24 January, 1667. The Earl of Argile contra George Campbel; so far the presumption of ha∣bite and repute prevails even over truth.

* 1.141BY this Act the granter of a Woodset is declared not to be pre∣judged by his negligence, though he suffer an Ecclesiastick quietly to intrude, and to continue long, yea even 100 years in the possession of Laick Patronages to which he has right, because during the none-redemption the Woodsetter did not look upon him∣self as Heretor.

The reason of this Act has certainly been because Church-men possessing per decennalen▪ & triennalem possess••onem prescrived a right, and the Act seems to imply, that because the granter of the Woodset was not valens agere whilst the Woodset stood, therefore his negli∣gence should not prejudge him; but I conceive that Church-men now prescriving a right by 40 years peaceable possession will exclude all the rights of Laick Heretors, as well when the Lands (to which the Laick Patronage is annext) are Woodset as other wayes.

FOr understanding Ecclesiastical Pensions, it is fit to know, that of old when the present incumbent was sickly,* 1.142 the Synods al∣low'd him to resign his Benefice, reserving to himself a Pension or portion out of it, as is clear by Balsamon ad Synodum Ephesinam; but thereafter the Pope having reserv'd to himself the power of burden∣ing Benefices with Penesions, men did by Simony impetrat from the See of Rome immoderat and causless Pensions, though it was preten∣ded that there could regularly no Pension be granted but for one of three reasons: 1. The favour of the resigner of a Benefice, that he might after the resignation live suitably to the Character he once bore. 2. That when two Benefices were excamb'd, the greater Benefice might be burden'd with a Pension in favours of the lesser. 3. When there was any debate concerning the Benefice, it was law∣ful to burden the same with a Pension. But notwithstanding of this, Pensions increased so far as to be complain'd of as a Harvest without Sowing; and our Law did take very much pains to lessen Pensions, and by the 1 Act of K. Ja. 1. his first Parliament, in the Black Acts which is not now Re-printed, the King reserved to him∣self the cognition of Pensions obtain'd at Rome. And by the 4 Act of the 1 Par. K. Ja. 3. it is appointed that no Pension be purchased out of any Benefice without consent of the possessor, which was ve∣ry just in it self, and was made to exclude the Popes power, who pretended that he could Arbitrarily impose any Pension he pleas'd, as is clear by Gigas de pensionibus Ecclesiasticis, Quaest. 4. By this Act it is declar'd that the principal gift of Pension being improven, all Confirmations and Decreets following thereon shall fall in con∣sequence. By the 29 Act of this Parliament it is likewise appoin∣ted that Pensions shall not be prejudg'd by the Act of Annexation, they being lawfully authoriz'd by Decreets, or Possession, and there∣fore by the 137 Act, Par. 12. Ja. 6. It is ordain'd that all Pensions not authorized by Decreet, or Possession in the lifetime of the Pre∣lat, alledg'd disponer thereof, shall be null; and by the Canon Law Pensions imposed upon Benefices of Cure, extinguuntur morte gravantis; but the reason given by this Act is, because such Pensi∣ons not so confirmed in the granters lifetime, are null of the Law, and may be presum'd to be false. Another reason that may be gi∣ven is, because the Incumbent having no power over the Benefice but during his life, it were unjust that any burden granted by him should last longer than his life, and if it lasted longer it would

prejudge very much the care of Souls, because the burden of a Pension would discourage the Intrant; and the reason why it is presum'd to be forg'd is because it is very probable that if it had been a true Pension it had been own'd during the lifetime of the granter. By the 207 Act, Par. 14. Ja. 6. all Pensions and Dispo∣sitions out of the Temporalities of vacant Benefices since the Act of Annexation, are declar'd to be null, which shews that Pensions were never consider'd as solid and unquarrellable rights.

* 1.143OBserv. 1. Though this Act appoints the Exchequer to sit till the last of August, yet it sits sometimes no longer than the last of July; and it being doubted whether the King could notwith∣standing of this Act of Parliament ordain the Exchequer Compts to begin upon the first of March; it was resolv'd that could not be done, because by this Act of Parliament the not Compting till the first of July, was introduced in favours of the Subjects, who are by this Act liable to no Compt till July, and so the King could not anticipat the obligation, by making them Compt in March, this being rather matter of Property than of Govern∣ment.

Observ. 2. That Denunciations at the Mercat Cross of Edinburgh against such as do not Compt in Exchequer, they being thereto ly∣able, are equivalent, as if the Denunciation had been at the Head Burgh of the Shire; but yet I conceive Escheats would not fall upon such Denunciations, because no Escheats fall by Denunciations upon ge∣neral Letters; but it is alleadg'd that Escheats may now fall upon such Denunciattons by the 15 Act 3 Ses. Par. 1. Ch. 2. where this Act is renew'd, and such Denunciations are there declared to be equivalent to Charges and Denunciations personally, and at their dwelling house, and head Burgh of the Shire, and that as to all intents and purposes; and by that Act such Letters and Executions may be Registrated either in the general Register of Hornings, or in the Thesaurers Register, albeit generally all Letters of Horning ought to be Registrated in the particular Re∣gister of the Shire, Act 75 Par. 6. Ja. 6. or in the general Register.

* 1.144THis Act is explained in the 77 Act 6 Par. Ja. 5.

* 1.145EXecution by this Act may pass at the Kings instance against High. landers and Borderers, ubi non patet tutus accessus, upon Citation at the Head Burgh of the next quiet Shire.

Though this Act was only in favours of Executions at the King's instance, which seems to be a priviledge ob bonum publicum, yet by a late custome Dispensations are granted upon common Bills by the Lords, to cite at any mans instance, though it was not proven that there was not tutus accessus, and therefore the Lords did by Act of

Sederunt discharge the granting of such priviledges upon common Bills, and ordained that something should be adduced for proving that there was not tutus accessus, and that such warrands should on∣ly be granted in praesentia, 29 June, 1666, Mepherson against Mc∣cleud. Per clem. 1. de Judic. & clem. 1. de sor. compet. citatio potest fieri per edictum ubi locus non est securus, vid. Marant. de jud. part. 6. num. 84. where he observes well that these edictal citations be∣ing so prejudicial, cannot be granted by inferiour Judges; and thus if any person be to be cited, as out of the Countrey, at the Peer of Leith, this cannot be done before inferiour Courts, without Letters of Supplement from the Lords.

BY this Act the Comptroller is lyable for the Chamberlains whom himself nominats,* 1.146 but he is only lyable for diligence against He∣retable Chamberlains, because he names them not. The Thesaurer is lyable in the same manner as the Comptroller was, though the Thesaurer be not here nam'd, because the Thesaurer is now in place of the Comptroller. But it may be doubted if a person who is repute solvent, and was really so, were nominated, a Chamberlain proving afterwards insolvent, will make the Thesaurer lyable.

BY this Act Rentals set by the King, not bearing Heirs, are not extended to Heirs, but resolve in naked Liferents,* 1.147 though regularly qui sibi providet & haeredibus providisse videtur.

Nota, That our Law has thought that this needed an Act of Parliament; and therefore in other cases, where there is no Statute it would seem that Rights granted to a man, should regularly ex∣tend to his Heirs, arg. hujus legis.

Observ. 1. Though this Act mention only Rentals set by the King, yet the Rentals set by Subjects, are not extended to Heirs, except Heirs be therein-mentioned; and though a Rental mention Heirs indefinitly, yet it will only extend to the first Heir, and will nei∣ther be accounted null for want of an Ish, nor be extended to all Heirs, for then it would be equivalent to an Heretable Right.

THis Act Discharges the Disponing of the Kings Casualties in great, as the Casualties of a whole Countrey,* 1.148 which is most rea∣sonable; and therefore all Gifts of Regalities may be quarrell'd as null, because in them all the Escheats are Dispon'd; and though this Act Discharges the giving away of Casualties arising from any one Crime, yet this Objection was Repelled against the Gift of Usury in which were given away all the profits arising to the King by Usu∣ry.

ALL pecunial pains are ordain'd to be taken up according to the rate the Money gave when the Fine was impos'd,* 1.149 or else the Fine is to be augmented, according to the augmentation of the Money; and this Act was reasonable, because it was not just that Delinquents should get advantage by not payment; and it was ne∣cessary, because without this Act, Fines, as all other Debts, might be pay'd according to the current Money, at the time the same fell due.

* 1.150THe pain of negligent Sheriff-Clerks is tinsel of their Moveables, and the principal Sheriffs are to pay 100 pounds for them, be∣sides the damnages of parties.

Observ. 1. That in the time of this Act, Sheriffs had the nomi∣nation of their own Clerks; but now since the Sheriff-Clerks are nominated by, and depend upon the Secretary, it is not just that the Sheriff should be Fineable for the fault of the Clerk.

Observ. 2. That though by this Act the Sheriff-Clerk is ob∣lig'd to send an Inventar of all the Registrat Hornings yearly to the Thesaurer, yet this is in Desuetude.

* 1.151THis Act is in Desuetude as to the price to be taken by Messen∣gers, but they still find Caution to the Lyon at their ad∣mission, de fideli administratione.

* 1.152RElief is a Duty due by the Vassal to the Superiour at his En∣try, for relieving his Fee out of the Superiours hands. By this Act it is appointed, that when this Casualty arises to the King, it may not be compounded for, but that all that is due be taken; and the true avail is a years Retour-duty in Ward-lands, and the double of the Feu-duty in Feu-lands.

Hope tells us, that though a Gift of Non-entry contain the Re∣lief, yet the Donatar will not have Right thereto, because such is the Custom of Exchequer, as he says; But I think that the true reason is, because this Act Discharges this Casualty to be gifted. When ere the Vassal takes out a Precept from the Exchequer, for Infesting himself, he is lyable for the Relief; and the Sheriff may be Charg'd therefore, conform to the Responde Book: or the par∣ty may be Summarly Charg'd for it by this Act, and the ground may be also poynded for it, as de••itum fundi, when a party gets a Precept, the Servants of the Chancery write down respondebit Vicecomes de, &c▪ or Respondebit any Judge to whom the Pre∣cept is direct, and that is call'd the Responde here mention'd, by which Responde-book, the Sheriffs and their Deputes are Charg'd yearly in Exchequer.

BY this Act the Sheriff did count for all Escheats yearly, for then he might have intrometted summarly,* 1.153 and had Letters of In∣tro••ission; but now he is not countable, nor oblig'd to intromet, but the Escheats are gifted to Donatars.

BY this Act all Commissions for judging Crimes,* 1.154 are ordain'd to pass the Quarter-Seal: but now Commissions are granted by the Council without any Seal; and though this Act Discharges justly the granting Commissions for judging Slaughter, ordaining that Crime to be Judg'd only by the Justices; yet now the Council uses to grant Commissions even for Judging Slaughter, Murder, Witchcraft, and all such Crimes. But though the Council may grant such Commissions for Judging these Crimes, when they fall in under general Commissions, that are granted by the Council; yet I see not how they can grant Commissions contrary to this Act, for Judging Slaughter in special.

Observ. 2. That all Commissions of the Justiciary should be un∣der the Quarter-seal, to the end as this Act of Parliament observes, there may be a Responde made thereupon; and yet the Council now uses to grant Commissions, which have no other warrand but a Paper subscriv'd by themselves, and not by way of Signature, as is here ordain'd, and the great fault that is committed in granting these Commissions, is that the Process is never ordain'd to be re∣turned to the Justice-Clerk, to the end that both it may be known, whether the Processes be legal, and that it may be known what is due to the King, for which the Responde mentioned in this Act was to be made, vid. observ. on 126 Act Par. 12 Ja. 6.

Observ. 3. From these words of the Act, That no Commission be granted to proceed in Slaughter, but that the Justice-general and his Deputs proceed thereupon. It uses to be urged that a Council of War cannot be a sufficient Warrand for Souldiers to Judge Murders, and other Crimes committed by any of their Number against Countrey-men, these not being Military Crimes, but being Crimes that should be tryed by our fundamental Law in the Justice-Court, where the people have a double security, both by Learn'd Judges, and an Inquest of Neighbours, and a Kings Advocat to be careful of the probation; and it may as well be pretended that they may Judge their own Souldiers in civil Cases; and that they may judge a Coun∣trey man when he kills a Souldier, Vid. Crim. pract. Tit. Jurisdiction of Justices over Souldiers; and the Council ordain'd Burr a Drummer to be delivered up to the Justice Court for killing a Woman, though he had suffered two Councils of War, November 3. 1681. But to clear this, the King by His Letter to the Council, has declar'd that Souldiers are only to be be Try'd for Military Crimes by a Counsel of War, and that for ordinary Crimes they shall be judg'd by the Justices, &c.

* 1.155AS parties may pursue Crimes without concourse of the Kings Advocat; so by this Act the King may pursue without an In∣former, ad vindictam publicam.

* 1.156THis Act ordains that no Rests be allow'd to the Thesaurer ex∣ceeding 20000 pounds a year, but that he shall compt for what is above this sum, so that he may do Diligence therefore as ac∣cords, but this is not observ'd.

The second part of this Act ordains that the King be not pre∣judg'd by general Ratifications in Parliament; for though Ratifi∣cations cannot prejudge third parties; yet they might have pre∣judg'd the King who past them, if His Majesties Interest had not been secur'd by this Act.

THough this Act Discharges all continuation of Justice-Courts, and Ordains the Justices to proceed,* 1.157 notwithstanding of such precepts; yet both King and Council use to Command the Justices to continue their Diets, though this Act was objected in the Process for William Halyburton's Murder, June 1676. But it is ne∣cessary that in such Cases the King should be inform'd by the Ju∣stices, what is to be said on both sides, before they continue such Diets in Process, at the instance of privat parties, for the King and the party having different Interests, and it being declar'd by Act of Parliament, that the party may pursue without the King. It seems very reasonable that the parties Process should not be stopt upon sur∣reptitious Warrands, without acquainting the King.

I find in the Council Register, July 1582 That because His Majesty had been troubled by the importunity of such as desir'd not to be Try'd before the Justice-airs, but at particular Diets, whereby they eschewed ordinarly all punishment; that therefore His Majesty does in Council, Statute and Ordain (this is oftimes the Stile in Acts of Council, as well as in Acts of Parliament) That the Justices shall proceed, without respect to such Warrands; and it seems that that Act of Council has given occa∣sion to this Act of Parliament; and generally many Acts of Par∣liament have been at first Acts of Council, which shews like∣wise what power the King has in His Council of this Nation.

* 1.158THis Act appointing that Sheriffs should yearly give in the Names of their Deputs and Clerks to the Lords of Session, and find Caution in the Books of Council, is in Desuetude, as to both the parts, for they neither find Caution, nor give in the Names of their Deputs; But de jure, I think Letters of Horning may be direct upon this Act for both effects, it being most rea∣sonable that the Lords of Session should know whether the Deputs be able, and this Caution would keep them in awe and secure the

people, if they do injustice. The Caution requir'd by this Act is Burgesses, Indwellers in Edinburgh Caution Burgeoise, as the French call the best Caution.

BY this Act the form of holding Justice-airs is set down, but it is to be found more fully in the Iter justiciarii,* 1.159 and upon the word Justice-air, de verb. signif. and so needs not be repeated; but there are some things fit to be observ'd, because innovated.

Observ. 1. That Commissions of Justiciary are to be under the Testimonial of the Great-Seal by this Act, but now they are al∣ways under the Great-Seal, when granted by the King; but sel∣dom or never under the Quarter-Seal, which is call'd the Te∣stimonial of the Great-Seat, and when they are granted by the Council, they are only Sign'd by a Quorum, but under no Seal.

Observ. 2. That albeit the Steuartries or Bailliries be here ap∣pointed to come to the head Burrows of the Shire, where Dittay is to be taken up; yet it has been found, that the Council may or∣dain them to come to other places for the publick conveniency, when the Diets are so short that the Justice Clerk cannot stay at every Shire, and thus the Constabulary of Hadingtoun was ordain'd to give up Dittay at Edinburgh.

Obser••. 3. That albeit by the old Form, Pannels were to be Cited to Justice-airs upon fourty dayes Iter. Just. num. 6. Yet now they use to Cite upon fifteen or more dayes, and then as now, they are not Cited peremptorly to one day, as in ordinary Justice-Courts, but to any one of the days in which the Court is to sit in that place, to which they are cited, and all the Pannels are called eve∣ry day at that place, and if they compear at any one of the dayes, they are not declar'd Fugitives.

At the first day of Justice-airs, all who are call'd must find Cau∣tion to appear at all the Diets of the Justice-airs, which some com∣plain of. Albeit by the form of our old Bri••ve, and the constant Practique, only Millers, Brewers, Smiths, and Officers of Courts were cited to give up Dittay upon Oath, because it was presum'd that the best intelligence is to be had from such publick persons; yet the Cou••cil did lately ordain that Noblemen and Gentlemen should likewise be oblig'd to give up Dittay, because the Crime being Treason, and art and part thereof; It was presum'd that they should understand the same better than mean people; and for detecting of so great a Crime, persons of all qualities should concur; and the former Custom was not exclusive of calling per∣sons of quality. Likeas by the 94. Act Par. 13 Ja. 3. The King is to call the Lords and Head-men of the parts of His Realm, and to take Dittay of them (id est by them) of notour Trespas∣sers.

* 1.160BY this Act Hoghers or Slayers of Horse, destroyers of Plough-Graith, Growing Corns, &c. are punish'd as Thieves to the Death, Vid. crim. pract. Tit. Theft.

Observ. 1. That this Act proves Theft to be Capital by our Law, though we have no express Law for making Theft Capital gene∣rally.

Observ. 2. That it may well be doubted, whether cutting of Corn, &c. in Landed-men is Treason, since it would seem to be so; for by this Act it is declar'd punishable as Theft, and Theft in Landed-men is by the 50 Act of this Parliament declar'd to be Treason; but yet I conceive that these Statutory Thefts are not punishable as Treason, since that were but fictio fictionis & duae fictiones non cadunt in idem subjectum. Likeas the punishment is de∣determin'd here to be the punishment of simple Theft, viz. Death, whereas if the Law had design'd Forfalture, it would have nam'd Forfalture here, as in the former Act. It has been doubted upon this Act, whether the cutting of Corns Sowen by a Strang••••▪ who had no right, was a Crime in the Heretor, who may pretend that satum cedit solo; and it is thought that if the Heretor suffer'd a Stran∣ger to possess for any considerable time, he could not have cut them down summarly, no more than he could have removed that Stranger summarly from his Possession, though unjust.

* 1.161THese Acts are Explain'd crim. pract. Tit. Deforcement, Vid. Act 150 Par. 12 Ja. 6. and Statut. Will. cap. 4. v. 5.

* 1.162IT appears by this Act, that Letters of Lawburrows were of old granted by several Clerks; and by this all Caution for Law∣burrows is ordain'd to be found to the Justice-Clerk, which was in∣deed most reasonable, because bodily harm is there dreaded, and the preventing of that should belong to the Justice-Court; but now the Council, Session, and Criminal Court have the power of causing parties find Caution for Lawburrows, but the Act in so far as it discharges Lawburrows to be granted against Complices in the general, is yet in observance, and very justly, for it was not fit to leave it arbitrary to the parties to charge any they pleased.

* 1.163THough this Act appoints all Courts to be Fenc'd at eleven of of the Clock in the forenoon, yet it does not irritat and annul all Courts holden at any other hour, and Courts are ordinarly held at other hours, but it may be doubted, whether a party cited to a peremptory Diet, and staying till twelve of the Clock, and tak∣ing Instruments thereon, could be unlawed in the afternoon, for absence; but if the Court once sit, parties are obliged to at∣tend.

THough this Act appoints the Expences of parties accus'd and ac∣quitted to be modifi'd by the Justice-Clerk and his Deputs,* 1.164 yet they are now only modifiable in full Court by the Justices: but it is doubted, whether the Justices can modifie Expences, where the Defenders are absent, since the only Certification against ab∣sents, is that they shall be Denunc'd Rebels; But yet the modi∣fying Expences, seems to be the necessary result of all Processes, and that inest officio judicis; It is also doubted, whether the Justices can ex intervallo, modifie Expences, none having been sought the time that the Letters were brought back, and the par∣ty declar'd Fugitive, and the Justices are in use to do both, but the case has not been yet fully Debated.

BY this Act the Roll of Assizers was to be given by the party ac∣cuser, or a Notar in his name;* 1.165 but now by the third Article of the Regulations, for the Justice-court, the Assizers are nam'd, and the List subscriv'd by the Justices, for it was thought too se∣vere that the Kings Advocat, or the party accuser should have the naming of the Assizers.

BY this Act Customers passing Customable Goods for Gratitude, are to be Try'd Criminally,* 1.166 and their Moveables to be Escheat∣ed in case they be convicted.

Observ. 2. That the Kings Servants are only to be punish'd in case they transgress for Money, so that negligence is not punish∣able except it be gross; but yet if Customers should wittingly and willingly pass Goods for Friends or Relations, I think it would be punishable by a Fine: And since the stealing of Cu∣stoms is Theft, this connivance in strict Law seems a Theft-bute, or accession to theft.

Observ. 2. Though this Act declares this accession punishable in a Justice-air, yet the Exchequer and Council do also punish the same by arbitrary punishments.

THis Act is Explain'd fully crim. pract. tit. Assizes; but it is fit to add that His Majesty having written a Letter in anno 1683. desiring the Justices to Examine Witnesses in Treason,* 1.167 when the Council requir'd them, at any time before insisting in the Process, to the end His Majesties Advocat might know how to Libel, and to prevent the absolving of Rebels, who were truly guilty by the mistake of citing the wrong Witnesses; it was alleadg'd that the desire of that Letter was contrary to this Act, ordaining all pro∣bation to be receiv'd only in presence of the Pannel.

2. That this would ingage Witnesses to adhere to the Depositi∣ons that might be Elicited from them by the too great zeal of His Majesties Servants, or the influence of others. To which it was answer'd, that as to the first, the Depositions to be taken in that

previous Tryal, were not to be made use of to the Assize, which was all that was discharg'd by this Statute.

As to the second, It was not to be imagin'd that the Judges, to whom only this was to be intrusted, would prejudge any Pannel, or be corrupted by any influence; and before the Witnesses De∣pon'd these Depositions should be destroy'd, so that the Witnesses could be under no apprehensions upon that account, and the people were in a better condition by this Letter than formerly, for it was securer to trust previous examinations to the Judges than to the Kings Advocat who did alwayes Examine alone formerly, and this would prevent unjust trouble, when there were no Witnesses who could Depone against the persons accus'd through error or malice.

THis Act is also Explain'd in the Title Assizes: But it is fit to add that Blair and others being Convict of Error for assoilʒying some Traitors wrongously,* 1.168 and their Escheats being gifted, they rais'd a Reduction of the Gift, as founded upon a Verdict that was null by this Act, in so far as the Kings Advocat had spoke with the Assyzers after they were inclos'd, which reason was repell'd, be∣cause the Justices had declar'd that the Advocat had only spoke to the Assyzers in their presence, when the Assyzers were desiring to be solv'd of some doubts which was ordinary and allowable, De∣cember 21. 1682.

It may be also doubted whether such Verdicts can be reduceable, for though the Act declare that the Assizers may assoilʒe, if any speak to them, yet if they and the Justices proceed, it seems not quar∣rellable, or at least before the Session; for I remember that the Ju∣stices having declar'd a Bond of Glenkindies forefaulted, for not producing some Witnesses against himself; the Lords declar'd that the Justice-court being a Supream Court, their Acts and Sentences were not quarrellable before the Session, Queritur, if both these may not be quarrell'd before the Parliament; and I think they can not, except the Decreets of the Session can.

* 1.169THis and the following Acts to the end of this Parliament were made for quieting the Borders and Highlands, as to which the same courses are to be taken, though now the Borders are Govern∣ed by a Commission of both Kingdoms, so they are not put to find Caution as they were by these Acts; but the Acts here set down are generally observ'd as to the Highlands still, except in so far as I shall here observe upon the respective Acts.

Observ. 1. Though this Act appoints that the first day of eve∣ry Moneth shall be appointed for hearing Complaints concern∣ing the Borders and Highlands, yet that is in Desuetude as to both.

Observ. 2. That, that part of the Act ordaining a special Register to be made for Borders and Highlands, is in observance, quoad the Highlands by a late Act of His Majesties Privy Council.

BY this Act all the Lands-lords contain'd in this Roll, are or∣dain'd to find Caution,* 1.170 which Roll is subjoin'd to the Acts of this Parliament, but that Roll is now very much alter'd, for ma∣ny others are now ordain'd to find Caution, who are not therein specifi'd; but are now in the Proclamations of Council, March 17. 1681. &c. because the Heretors mention'd in the Acts of Parlia∣ment, are often extinct, and the Lands for which they were to be bound, are dispon'd to others. And whereas by these Acts, these Landlords and Chiefs of Clans were ordain'd to produce their De∣linquents before the Justice or his Deputs, they are now to produce them before the Council, or else to pay the Debt, which are great arguments to prove that in matters of Government de facto we con∣sider more the Reason, than the Letter of the Law.

Though this and the 103 Act of this Parliament, which is co∣incident with this may seem severe, because the innocent is bound for the guilty, yet necessity and publick interest has introduc'd these Laws by the same reason that in England the Paroch is lyable for the Robberies committed therein betwixt Sun and Sun, and thus these who have power of Jurisdiction from the Emperour, are ly∣able, vias publicas a latronibus purgare Gail▪ observ. 64. lib. 2. vid. eti∣am, l. 3. l. congruit, ult. ff. de officio Praesidis.

It has been doubted whether the Council could in other cases not warranted by express Acts of Parliament oblige the Subjects to give Bond to live peaceably conform to Law, and particulary that their Tennents should not keep Conventicles, but should go to Church, and pay 50 pound Sterling for every Conventicle kept upon their Ground, or should present their Delinquents; and it was alleadg'd that the Council cannot, because regularly one man is not lyable for another mans Crime, nor can this inversion of Pro∣perty and Natural Liberty be introduced by a lesse power than a Parliament, nor had Acts of Parliament in this case been necessary, if the King and Council could have done the same by their own authority; but yet since the King has by express Act of Parliament the same power here that any Prince or Potentat has in any other Kingdoms, and that Government belongs to him as Property does to us, nor can the peace be secured otherwayes than by allowing him to take all courses for securing the peace, and preventing dis∣orders, that therefore this joyned with the practice of the Council is a sufficient warrand for exacting such Bonds, the practice of our King and Council being the best interpreter of the prerogative, espe∣cially where the things for which Band is to be taken, are not contra∣ry to express Law; and it is implyed in the nature of alledgiance that Land-lords should entertain none but such as will live regularly, and if they transgressed, the Master could not in common Law thereafter recept them without being lyable, as we see in Spuilʒies; or if the King pleased he might denounce the transgressors Rebels, and so might put the Master in mala fide, and though there be no such par∣ticular Laws warranding the taking of such Bonds, yet it will ap∣pear

by many instances in this Book, that Laws are extended de ca∣su in casum, and thus this power seems inherent in the Crown; like∣as the matter of Property is sufficiently secured by the alternative foresaid, of either presenting or paying the damnage, which alter∣native seems to be founded upon the same principle of justice, with actiones noxales mentioned in the Civil Law, Domino damnato permit∣titur aut litis aestimationem sufferre aut ipsum servum noxae dedere, vid. Tit. 8. lib. 4. Institut. I find many instances in the Registers of Council, wherein the Subjects are charg'd to secure the peace, under the pain of Treason, as in the case of the Lord Yester.

BOnds given by Cautioners for broken men, do oblige the Heirs and Successors of the Cautioners,* 1.171 though they be not men∣tioned in the Band.

Observ. 1. In Law he who obligeth himself to pay a Sum, o∣bligeth his Heirs; for as in Law qui sibi providet & haeredibus provi∣det sic qui se obligat & haeredes obligat, and therefore a man having bound himself and his Heirs Male, it was found that the Creditor was not thereby excluded from pursuing the Heirs Female, or any other Heirs, but that he was only bound to discuss first the Heirs who were specially named in the Obligation, 18 February, 1663. Blair contra Anderson; but yet Obligations for performing a deed, such as to present a Thief, are of their own nature personal, and therefore this Act was necessary.

THe taking of Surety from Chief of Clanns doth not loose the O∣bligation taken from Land-lords,* 1.172 & e contra, and the reason why this Act seemed necessary, was, because this seemed to be an Innovation, and it seemed not just that both the Chiefs and Land-lords should be lyable, since they could not both have absolute com∣mand over the person to be presented; but yet this Act was most suitable to Law, since novatio non praesumitur nisi ubi hoc expresse actum est, l. ult. Cod. de Nov. And the Tennents in the High-lands are influenced both by Chiefs and Land-lords; but to make this Law more just, the Council gives action of a relief against the Lands-lord, if the Lands-lord harbour, or to the Lands-lord against the Chief, if the Chief recept him.

BY this Act if Goods be taken away by any Clann'd man and re∣cept in the Country of their Chief, for the space of 12 hours to his knowledge,* 1.173 the Chief shall be lyable in solidum for all the Goods taken away, though there were but very few of his men present, as was found in a case pursued by Francis Irwing against Glenurchie be∣fore the Council; all such Chiefs being lyable in solidum, and not pro ratâ only for the wrongs committed by their Clanns.

BY this Act no Magistrat may keep a Thief,* 1.174 or Malefactor in Arms with him, albeit he pretend he is his Prisoner, but he must de••ain him in a closs house, both because squalor carceris is a part of the punishment due to Malefactors, and because if this were allow'd, Magistrats might by collusion suffer Malefactors to en∣joy their liberty.

IS explained Crim. pr. tit. Theft.* 1.175

THis Act ordaining Masters to present their Tennents upon the Kings closs Valentines (or Orders in little Papers like Valen∣tines) is observ'd in the whole Registers of Council.* 1.176

THese two Acts discharging the Borderers of Scotland to marry with the Borderers of England, or to labour their Lands,* 1.177 are abro∣gated by the Union.

BY this Act the Land-lord doing diligence by obtaining Decreet of removing, using Horning,* 1.178 and doing all other things that was in his power after the fact comes to his knowledge, is no further lyable.

Nota, By this Act the Land-lord must be put in mala fide by inti∣mation of his Tennents Crime. 2. Dubitatur whether this privi∣ledge should not likewise extend to Chiefs of Clanns, since they have less interest in the Delinquents then the Land-lords.

BY the 100 Act of this Parliament, such as committed Slaughter, Mutilation, or other hurt upon Thieves, are not lyable:* 1.179 But by this Act an Indemnity is likewise granted to such as raise fire a∣gainst them, that being there forgot.

THis Act is explained in the Observations upon the 29 Act of this same Parliament.* 1.180

BY this Act the Burrows pay the sixth part of the Impositions of Scotland, which is yet in observance,* 1.181 and because of this bur∣den they have the only priviledge of Trading, and therefore they justly pretended that their priviledge of Trading could not be com∣municable to the Burghs of Barony and Regality, who bore no part in this burden.

Nota, That though by this Act the Taxation of the Burrows is not to be altered, that is only mean't of the 6 part which is to be born by the Burrows in general; for notwithstanding of this Act the Convention of Burrows do alter the Taxation of any particular Burgh according as the number of Burghs increaseth, or according as any particular Burgh grows unable; and they divide this sixth part amongst themselves according to the total of 100 pound Scots,

which is the imaginary Standard or Assis, and each Burgh pay ac∣cordingly, some being valu'd at 6 ss. some at 12 ss. &c. And if any Burgh resign its priviledges, they must also resign in favours of the Burghs Royal their common Good, after which Resignation, and not otherwayes, their proportion is divided amongst the rest; for it were unjust that they should retain their common Good which was to pay the proportion of publick burden, and yet be free from the burden it self.

* 1.182BY this Act a Burgh selling any part of their freedom without consent of his Highness and his three Estates, loses their whole freedome.

Observ. 1. That the reason given by this Act is, because they as Vassals cannot sell without consent of the King their Superiour, and so this seems to be a kind of recognition, and it would have ap∣peared reasonable that therefore the King's consent might have seem'd sufficient, because he is only Superior; but the reason why by this Act the Parliaments consent is declared necessary, seems to be, because Burghs-Royal bears a part of the Taxation of the King∣dom, and so alienating any part of their freedom, they seem to les∣sen the subject-matter out of which the Taxation is payed.

Obseev. 2. It may be doubted whether a posterior Confirmation or Ratification by the Parliament will be a sufficient consent.

Obsrrv. 3. That Magistrats and Council cannot alienat the pri∣viledges of a Burgh, and therefore Alienations made by them would not infer this forfaulture or recognition, and therefore all the Inhabitants behoved to be cited by Touck of Drum to such A∣lienations as they were per sonitum Campanae, in the Civil Law, tit. Cod. de venditione Bon. Civit.

* 1.183BY this Act the Parliament having referred to the King to de∣termine who should represent the Barons (which shews what great deference our Predecessors had to their King) His Majesty determines that none but such free Barons as are Free-holders, hold∣ing of the King, and residing within the Shire, shall represent the Shire; but by an Act of Parliamant, 1669. It was declared that such as are free Barons might elect or be elected, though they were not actual Residenters, and that notwithstanding of this Act which is thereby abrogated as to that point, and most reasonably, for their interest in the Shire ceases not by their not residence; and conform to this Act the Convention decided in all Elections, June 1678.

Nota, All Elections are to be subscrived by six Barons at least, and though in controverted Elections these who have six will be preferr'd to these who have five, and if neither of the Competi∣tions have six, a new Election will be order'd, because both are unlawful; yet if all the Barons were cited, and fewer than five were only present, a Commission by these five may seem sufficient, because the absence of Barons should not prejudge the Shire; yet in

the Convention 1678. many inclin'd to think that a new Election should be order'd in that case, because of this Act, and that that Shire ought not to have a Vote who would not send legal Commis∣sions.

Though by this Act the Missives for calling Parliaments or Con∣ventions (which are here called General Councils) should be di∣rected to such as were the last Commissioners, in place of the She∣riffs, yet now they are ordinarly directed to the Sheriffs, and some∣times to any the King pleases, as in the Parliament, 1661.

By this Act the Commissioners are to be choos'd at Michaelmass Head Court, and failing thereof at any other time the Free-holders meet, or when his Majesty requires them; and therefore it may be doubted if every Shire are obliged to choose at Michaelmass, since that seems to be ordered here, and the other dyets are only order∣ed to be failing of that Head Court: But yet many Shires in Scot∣land use not to choose at Michaelmass, but delay Elections till they be required.

Though by this Act the names of such as are elected are ordained to be notified in Writ to the Director of the Chancery by the Com∣missioners of the last year, yet that is not now in observance, since his Majesty uses no more to call Parliaments and Conventions by Precepts out of the Chancery, but by general Proclamations.

It is to be remembred that where there are Elections at Michael∣mass, the Shire cannot choose of new, as was found in the Conven∣tion 1678. in the case of the Shire of Perth, and ordinarly the Pro∣clamations bear as it did there, that the Shire should choose where they had not formerly chosen at Michaelmass, and so these Electi∣ons were made without warrand; but it may be doubted whether such Elections would be invalid if the Proclamations mention'd no∣thing, as to this point it was there alledged that the Shire might make a new Election, because the Commissioners then chosen were denuded, and were become no Barons; to which it was answered, that this should have been represented to the Council, who would have ordered a new Election, but the Shire could not proceed to elect by their own Authority contrary to the Proclamation.

THough this Act has adjusted the Weights and Measures of the whole Nation,* 1.184 and ordain'd the Linlithgow Furlot to be the Standart as to that measure; yet it is expresly provided by this Act that if any persons be founded by Infestment, Tack, or Contract, in a different Measure, that Measure contain'd in their private Right should stand, but should be proportioned to the Linlithgow Measure, without prejudice to either Party, that is to say, they should have right to the old Measure fully, but it should be payed according to the new Measures; as for instance, the Boll of Galloway being six Furlots, the Master should have six Furlots pay∣ed in to him, which exception was most just, because of the intrin∣s••ck value of the Lands to which the old Tacks, &c. were propor∣tion'd, but yet the Lords sustain'd in Milns a Moulter, though much

greater than the ordinary fourth part of a Peek, because of con∣stant possession, and found that this Act did not extend to Milns, since therein different Measures are used according to the proporti∣on of the service, nor was this Act ever observ'd in any part of Scot∣land as to Milns.

In Conjunct-fees and Life-rents also, the Husband being oblig'd to provide the Wife to particular Lands, which he obliges himself to make worth so many Chalders of Victual, it has been found that he is oblig'd to make them worth so many Chalders, according to the measure of the Countrey where the Land lyes, because his own Rent is so payed; and Ministers in Galloway, and other places where great Measures are used, will get their Stipends according to these Measures; the reason of all which I conceive to be, that these mea∣sures were made greater at first, because of the insufficiency of the Victual of these Countreys, and so the greatness of the Measure does only equal the intrinsick value.

This Act having fallen in Desuetude as to the Linlithgow Mea∣sure, is again renewed by the 16 Act, Par. 23 Ja. 6. And many wish that Corn were now sold by the weight, and not by measure, weight being the only sure rule of the intrinsick worth of Corn; but this being propon'd in the Par. 1681. the overture was reject∣ed by a Vote. Vide observ. on Act 96 Par. 6. K. Ja. 4. supra.

King James the sixth, Parliament 12.

FOr understanding this Act it is fit to know that upon the 22 of May 1592.* 1.185 The Presbyterian party taking advantage of the Kings being engag'd against Bothwel▪ and in other dif∣ficulties, they held a General Assembly at Edinburgh, where∣in they drew up several Articles to be presented to the King and Parliament, whereof Spotswood names only four: 1. That the Acts 1584. against the Discipline of the Church, should be abro∣gated, and the present Discipline establish'd. 2. That the Act of Annexation should be abrogated, and the Patrimony of the Church restor'd. 3. That Abbots and Priors, &c. nor none having Com∣mission from them should Vote in Parliament, as Representing the Church. 4. That the Land should be purg'd of Blood.

The King rejected the second and third, but in complyance with the first Article he did, because of his present difficulties, as Spots∣wood observes, allow the present Church Discipline by General Assemblies, Synods, and Presbyteries; but yet he does not here expresly abrogat Episcopacy, only the Presentations are not or∣dain'd to be directed to them, but to Presbyteries; which Pre∣sentations are again restor'd to Arch-bishops and Bishops by the 1 Act Par. 21 Ja. 6. And Spotswood tells us, that severals of the

Bishops possest even then by their Titulars.

Episcopacy war again restor'd, so that the Bishops did sit in Par∣liament, by the 231 Act Par. 15 Ja. 6. but they were not fully re∣stor'd to their Spiritual Jurisdiction, till the 2 Act 18 Par. Ja. 6. but in that Act, this Act is not abrogated, as it would certainly have been, if this Act had abrogated Episcopacy; but this Act is abro∣gated by the Act 1 Par. 21 Ja. 6.

By this Act the Collation and Deprivation of Ministers is declar∣ed to belong to the Church jure divino; but these words, or any siklike essential Censures, having warrand from the Word of God, are too general and may be abused.

This Act is now abrogated totally in all its Heads, Clauses and Articles, by the 1 Act 2 Sess. Par. 1 Ch. 2. which seems too general; for though this Act establishes Presbytery, yet there are many Clauses in it in favours of the Protestant Religion, and to which no answer can be made, but that, what this Act has establish'd in favours of the Protestant Religion, was formerly establish'd by other Acts, but the truth is, these Acts are not so full as this.

PEttie in his History tells us, that by the seventh Article of the foresaid Assembly,* 1.186 it was desired that Tacks set by the Depos'd Ministers should not stand: But by this Act it is only declar'd that when Ministers are depriv'd, their deprivation excludes them, tam ab officio quam beneficio, which has been doubted, because Sus∣pensions are only ab officio.

By this Act though the persons be depriv'd, yet it is declar'd that their deprivation shall not be prejudicial to Tacks lawfully set by them before their deprivation, and the Lords do expone the word lawfully so, as to extend to the Setter himself, so that his Successors can only quarrel these Rights upon such reasons as the Setter him∣self could have quarrelled them, Vid. Hopes Major Pract. Tit. Kirk.

THis Act is explain'd by the 48 Act 3 Par. Ja. 6.* 1.187

BY this Act the Woman Divorc'd for the Crime of Adultery committed by her,* 1.188 cannot Dispone her Estate to her Adul∣terer, if she Marry him, or to the Children procreat of that pre∣tended Marriage, which has been introduc'd, not only as a punishment of the Adultery when committed, but to discourage any from committing Adultery, upon hopes that their Children might succeed to their Estates with whom they committed Adul∣tery, which is conform to the Canon Law, by which non licet eam ducere in uxorem quam quis polluit adulterio, and by the Civil Law, that woman could not Institute that Servant her Heir with whom she had committed Adultery, Inst. de haered. instit.

in princip. These Marriages are likewise declar'd null by the 20. Act 16 Par. Ja. 6. Vid. crim. pract. Tit. Adultery, pag. 1••2.

THough regularly Liferent-Escheats do not fall while after year and day;* 1.189 yet such as commit Slaughter within Kirks, or Kirk-yards, and the Resetters of them, lose their Liferent-escheat immediatly after Declarator, and this Liferent falls to the King, though in other cases Liferents fall to the Superiour, of whom the respective Lands hold.

* 1.190IT was usual to mortifie to Abbacies, formal and established Pa∣tronages of Kirks, which were formally erected in Parsonages, and to these the Monks presented Parsons, and were only in place of Patrons; at other times Tiends were Mortified and given to them; and after the Reformation, though Tiends were declared the Patrimony of the Church by the Act of Annexation; yet thereafter the Lords of Erection did prevail, by their importunity with the King, to erect these Tiends in Rectories, or Parsonages, whereof the Patronage was given to the Lord of Erection; but there can be nothing so unjust or illegal as these Patronages were; and therefore by this Act, the Parliament finding this abuse was growing, did declare that all Erections of Kirk-lands, and Teinds in Temporal Lordships and Livings, to the prejudice of the Kirk, and hurt of His Majesties Estate, and priviledge of his Crown, were null, which is founded upon excellent Reason; for such Ere∣ctions of Tiends were extreamly to the prejudice of the Church; Tiends being clearly by former Laws, declared to be the Spiritua∣lity, and so the Patrimony of the Church;

2. Laicks having power to present whom they pleased, such Erections did much hurt the Church, since it gave to Laicks the power of presenting.

3. It is too well known that such as are presented by these Pa∣trons, do ordinarly grant Tacks in favours of the Patron, and to his behove, which has been always lookt upon, as not only Si∣mony, but as most prejudicial to the interest of the Church, ma∣king the Ministry despicable, and tempting them to ill shifts, and discouraging worthy and honest men from seeking such slavish Be∣nefices, and therefore the Church has been always an enemy to such Impropriations, even when made in favours of Religious Mo∣nasteries; for Pope Alexander anno 1170 cap. Avaritiae. extra. de Praebendis, says, Intelleximus quod in Ecclesiis vestris pensiones perci∣pere consuevistis & antiquos reditus Minorastis ideo mandamus ut an∣tiquos reditus cum consensu Archiepiscopi ad integritatem pristinam re∣vocetis: and therefore the same Pope Alexander in the Lateran Council, made a Canon against this abuse, which was seconded by Pope Clement the 2. cap. sicut extra▪ de suplen. neglig. Praelat. and by Clement the fourth, in anno 1240: cap. Suscepti d•• Praebend.

in 6. but this was perfected by Clement the fifth, cap. constitut. de jure patronatus in Clementin, where it is appointed that si certa por∣tio (called constantly in the Canon Law congrua portio) non fue∣••••t ••ssignata per presentantem tune in paenam praesentantium ad Dioce∣s•••••••• ipsos potestas hujusmo•••• assignationis devolvatur. And since there was so great hazard in putting these Presentations in the hands of Monastries, what may be expected from Laicks?

These Erections likewise of new Patronages, are extreamly dis∣advantagious to the people, because one Gentleman has thereby right to force a Minister upon all the other ancient and great He∣retors of the Paroch. Likeas, by being Patron, he comes to have interest in all their Teinds; and since the great design of the sub∣mission and surrender, was, that every man might have right to his own Teinds, this could never have been fully done, except the Patronages had been surrendered, for the Patron still would be in effect Titular, by getting Tacks.

Likeas, by the submission, as in the beginning of it, they submit, as having, or pretending right to the Parsonage, Vicarage, or Patronage of Kirks pertaining to the Erections, so in the words of the Submission, they submit how they may be Denuded in His Ma∣jesties favours omni halili modo, of all and sundry Tiends, which they have of any other mens Lands, by whatsoever Right or Title they possess the same; and because His Majesty will take into His Princely Consideration, what satisfaction they shall have for their Tacks, Rights, and Patronages, according as His Majesty shall find the validity thereof. Therefore they submit, and His Majesty considers in the Decreet-arbitral, all the Patronages as sub∣mitted; and the reason why he determines nothing, especially for the Patronages, is, because considering all the Erection together, he determines satisfaction for that which is the true pecuniary in∣terest, nor needed the Act of Parliament express Patronages, be∣cause it only expresses these things, for which a pecuniary interest was to be given; or these Rights which were to be salved, but Pa∣tronages was neither of these: But the Act having annexed all the Superiorities of Kirk-lands, and Pertinents thereof, pertaining to whatsoever Abbacy, &c. according to the Tenor of His Ma∣jesties general determination, and the conditions therein exprest, it has thereby annexed all the Patronages, and it is observable, that though reservations are made, yet there is no reservation of Patro∣nages.

Nota, That the Kings Advocat in his Summonds of Reduction, calls for all Rights of Patronages per expressum, and then sayes, and true it is that the said Kirk-lands, and others Libelled were an∣next to the Crown by the Act of Parliament.

THis Act is Explain'd Crim. pract. Tit. Heresie, num. 4.* 1.191

THis Act regulating the Thirds of Benefices is now in Desue∣tude.* 1.192

* 1.193OBserv. 1. That Mercats are by this Act only discharged on Sunday in the Countrey, and not in Burghs Royal, for this Act is declar'd to be without prejudice of the Liberties of Burghs Royal; but this Discharge is extended to all, Act 159 Par. 13 Ja. 6.

Observ. 2. From the words, not being the Mercat day of the next Burgh, that even the Parliament would grant no Liberty to hold Fairs in prejudice of Fairs granted formerly to other Burghs; and upon this principle of common equity, & ne quid siat in aemulati∣onem vicini. The Lords Reduced a Fair granted to Glenbervie by the King, because it was upon the same day that His Majesty had granted a Fair formerly to Glensarquhar, and within a mile of the other: and another granted to the Earl of Aboyn, because upon the same day, and within a mile of an old Fair at Birse, though it was alleadged that the River of Dee was here interjected, which by its great Torrents about Michaelmass, stopt all the North from coming to the Fair, and Frits. de nundinis Treating this question, confesses that a Fair cannot be said to be in aemulationem vicini, where the reason why it was granted, could be attributed to any publick Good, or Utility. It was also urg'd, that the granting Fairs being a meer gratuitous concession, the King could not be bound up from granting a new Fair; and thus we see that the King erects new Burghs Royal within a mile of other Burghs, and erects the Suburbs of Towns to be Burghs of Barony, albeit these may be said to be in aemulationem alterius; and really they are very prejudicial, nor can that maxime hold any where, save in privat Deeds done by one Neighbour to another, principally in prejudice of another, but yet that Burghs cannot be erected in prejudice of other Burghs, and what may be said to be granted in prejudice of other Burghs, and how far this general may extend, is to be seen in Fritsius de nundinis.

Observ. 3. It has been urg'd that as by this Act, these who had Mercats upon Sunday, may hold them upon a Week Day; so if any person indite a Court, and cite to a day then lawful, though that day be thereafter declared a Holy-day, yet the persons there∣to cited are bound to appear the next lawful day, even where the Diets are peremptory.

BY this excellent Act Sheriffs and other Judges ordinar are com∣manded to search Rebels,* 1.194 not only within their own Jurisdicti∣on, but to advertise the Sheriffs of the four halfs about, and that under the same pains that the Traitors or Rebels themselves incur; and the recovering Decreets is not sufficient, but they must seek, follow, pursue and present them to Justice. This Act is but

ill observed, though most necessary and reasonable; and by the 15 Act Sess. 3 Par. 1 Ch. 2. It is declared, that not only by Law, but by 〈…〉〈…〉 and duty of their Office, Sheriffs, Stuarts, and 〈◊〉〈◊〉 of Regalities are obliged to put the Laws in execution against the contemners of His Majesties Authority, as his proper Officers.

BY this Act the Lyon and his Brethren Heraulds, are ordain'd to 〈◊〉〈◊〉 the whole Arms, and as to this part,* 1.195 I have Explain'd it in my Book of Herauldy.

By this Act also Letters of Treason are ordain'd to be executed by Heraulds or Pursevants, bearing their Coats of Arms, or Macers; which Solemnities were found only necessary in execution of Let∣ters, that is to say, Summonds of Treason, but not in the execution of Inditements of Treason, December 5. 1666. And the reason of the dif∣ference seems to be, because ••cts of Parliament are stricti juris, nor can an Inditement be c••ll'd Letters of Treason. Likeas, the reason of these Solemnities in executing of Letters of Treason, is, that the people may take notice who are cited for Treason, as the weightin ss thereof requires, which are the words of the Act, but Inditem••nts being only given to such as are in Prison, there needs no Solemn••y; and yet for the more security, Inditements of Trea∣son are also executed against Prisoners by a Herauld.

That part of the Act which relates to the Deprivation of Mes∣sengers is formerly Explain'd, Act 46 Par. 11 Ja. 6. Only it may be observ'd, that though the Lyon by this Act is ordain'd to de∣prive Messengers by advice of the Lords of Session; yet he uses to Deprive them by his own Authority, and in his own Court, and though he publishes the Deprivation at the M••reat Cross; yet Executions after that Publication have been sustain'd, if the Mes∣senger, after that Publication was habite, and repute a Messen∣ger, November 10. 1676. Stenart contra Hay. And though it may be alleadged that this Publication should put the Lieges in mala side, as well as the Publication of Interdictions and Inhibitions; yet the answer is, that there are publick Registers in these cases which may in∣form these who are to Transact, which cannot clear them as to the Deprivation of Messengers.

THough this Act appoints that the Justice-Clerk or his Deputs, shall within six days after Criminal Letters are returned,* 1.196 deliver the names of the persons Denunced, with a brief Note of the cause of their Denunciation to the Thesaurer; as also, the Names of such as are Unlawed for absence from Assizes; yet this is not now in ob∣servance, all that is observed now being only, that upon a Com∣mand from the Thesaury; these Lists are given in so, that this Act is rather forgot than in Desuetude.

By the last part of this Act, all Commissions of Justiciary, for longer space than the particular affair for which it is granted, are Discharged; and therefore by this Act it would appear, that Com∣missions

for Justiciary, granted for a year, or any definite time, and not for a particular Business, are null.

It is likewise appointed by this Clause, that such as procure Com∣missions of Justiciary, shall find Caution to Re-produce the Pro∣cess, and to pay that part of the Commodity, which by the Com∣mission is destinated for the Kings use, which is most rational, be∣cause this would likewise oblige these who get the Commission to do Justice, knowing that the Process may be revis'd, when it is lying in publica custodia, that is to say, in the Books of Adjournal, for such Processes ought to be brought back, and are usually Regi∣strated there; but this is oftimes neglected, and it was Debated in the Case, Turnbul against the Lord Cranstoun, July 1678. That the Tenor of a Decreet of Forfalture, pronunced upon a Com∣mission granted to the Earl of Dumbar, could not be proven, ex∣cept the Process were produced, whereupon it proceeded, con∣form to this Act, since all that the Witnesses could prove, was, that they had seen such a Decreet, which is not sufficient, for else an unjust Decreet of Forefalture might be pronunced and lost, to the end the Tenor thereof might be proven without any possi∣bility of quarrelling the VVarrands, whereupon it proceed∣ed.

It may be doubted what is meant by that part of the Commodi∣ty which belongs to the King; and I conceive that when such Commissions of Justiciary are granted, the whole Escheat belongs to the King, and the Commissioners have only Right to their ne∣cessary Expence tanquam mandatarii, except a particular Quota be condescended on in their Commission, though some are of opi∣nion that these Commissioners have right to the same Quota's that Sheriffs have, since they are Sheriffs in that part,

* 1.197BY this Act the Comptrollers consent is requisit in all Infeft∣ments of Feu-ferm or Confirmations of the Kings proper Lands; and though there be no Comptroller now, yet the consent of the Commissioners of the Thesaury, or Thesaurer, if he were, supplies the same. Hence it is that this Act appoints all Feu-ferms and Confirmations to pass the Comptrollers Register, which is likewise Ratifi'd by the 171 Act 13 Par. Ja. 6. It is sit to know that the Thesaurer and Comptroller had different Registers, but now there is but one Clerk to all the Exchequer, who is called the Thesaurers Clerk, and he keeps but one Register, each Volumn whereof is divided in two parts, the one whereof contains only Gifts that pass the Exchequer, and the other, all other Signatures of Confirmati∣on, &c.

BEasts found in His Majesties Forrests or Parks, may be brevi manu,* 1.198 intrometted with, Vid. Act 12 Par. 4 Ja. 5. But since Forrests are not now Fenc'd, it seems unreasonable that a

Beast straying should be Escheated, though where Beasts are de∣signedly driven into a Forrest, it deserves punishment, and this Act seems only to speak of Fenced Forrests, for it says, Parks, or Forrests; and it requires advertisement, before Beasts even found in these, can be Escheat, Vid. Argent. Tit. des Assize, where this matter is fully Treated.

ALL English Goods may be searched for, and if they be not Sealed by the Customers, may be Confiscated,* 1.199 which Act be∣ing put in practice at Edinburgh, in anno 1664. occasioned a great Tumult, and the Act was alleadged to be in Desuetude. The word Selling in this Act is wrong Printed in the last Impression, for it should be Sealing.

Nota, This Act Ratifies only an Act of Privy Council, which ordained formerly Confiscation; and this shews how great the Kings power was of old in the matter of Trade, Vide Act 24 Par. 16 Ja. 6. which renews again this Act.

VId. last Act 1 Par. Ch. 1.* 1.200

THis Act is Temporary, but from it, it is observable, that as the King may, as Superiour,* 1.201 call for production of any Vassals Rights and Infeftments, in a Reduction or Improbation, and even by way of Exhibition, which is conform to the Feudal Law, and to c. 24. Quon. Attach. so the King may by Act of Par∣liament, sometime call for production of all the Rights of His Vas∣sals of Kirk-lands together, as in this Act, or of all the Rights of any par∣ticular place, as of the Isles Act 262 P. 15 I. 6. And I think the King might have call'd for them without this Act, by Proclamation, and albeit it be said, c. 25. Quon. Attach. That the Vassal shall only be oblig'd to shew his Evidents once in his Life to the King; this is not now observ'd, and the true meaning of it is only design'd against too frequent troubling of the Liedges, which as no Ca∣lumniousness, is never to be presumed in the King, or His Offi∣cers.

THis Act appoints Lords of the Session not to be admitted till they be twenty five years of age,* 1.202 which agrees with the Law of France, Langlei Sem••str: c. 10. and with that of Venice, Contar. L. 3. c. 3. Whereas of old, the Romans admitted no Se∣nators till thirty five, which Augustus retrenched till thirty, Swe∣ton. c. 32. Vid. 93. Act Par. 6 Ja. 6. But that part of the Act ap∣pointing that none shall be admitted Lords, but such as have a thousand Merks of Rent, or twenty Chalders of Victual, is not now strictly observ'd, though this was an Act to prevent the Tem∣ptation of Bribing, and that parties injur'd by them may have some∣what,

out of which they may expect Reparation, si judex litem suam secerit.

* 1.203THe antedating of Warrands of Signatures is here punished, by the punishment of Falshood and Treason, three parts to the King, and the fourth to the party griev'd; from which it may be argued, that where no party is grieved, the punishment can∣not be infer'd, especially seing in that case it is presumeable there was no dolus, or Fraud, vid. cap. 9. Statut. Robert 3.

* 1.204THough Reversions be strictissimi iuris (which was the ratio du∣bitandi in this Act) and albeit the Contract bear, That there shall be no Redemption, without payment of more than ten for every hundred, as annualrent: Yet it is here declared, That ten for the hundred shall be sufficient, and now six of the hundred will be suf∣ficient, though this Act does not generally say, that the Consigna∣tion of the ordinary Annualrent shall be sufficient.

* 1.205THis Act is Explained in the 62 Act Par. 11 Ja. 6.

BY this Act, generally all unlawful and impossible Conditions in Contracts,* 1.206 or Obligations amongst privat parties, are discharg'd in general, which is conform to the Civil Law; by which impossible Conditions adjected in Testaments, are held as not adjected, or mentioned, but annul not that part of the Testa∣ment, to which they are adjected, §. 10. Ins••••t. de haer••d Ins••it. But in Contracts, the adjecting of an impossible Clause do••s annul the Obligation it self, l. 7. de verb. obliga. l. 31. de oblig. & Act. And the reason of this difference is, because the Law presumes, that where men adject impossible conditions in Contracts, they are not serious, and they resolve not to oblige themselves; but it is to be presumed, that all men being serious in their Testaments, the adjecting of such conditions did proceed from a mistake. Con∣ditio turpis, and unlawful conditions are judg'd in Law as im∣possible, l. 15. de cond. inst. and yet in this Act the Obligation sub∣sists in Contracts; and the impossible, or unlawful Conditions thereto adjected, and not the Contract it self, are irritated and declared null; but the particular that gave occasion to this general part of the Statute, was that some persons did declare by a Clause in the Bonds which they took, that it should be lawful to them to Charge their Debitor at the Mercat Cross of Edinburgh, and not personally, and that too upon so short a time as the party Charg∣ed could not know, so that their Escheat fell, and they lost per∣sonam standi in judicio, without knowing, or b••ing able to know their danger; which Clause is declared unlawful and impossible: and yet it may be alleadged this is not unjust, for when a man lends his Money to one living in Zeatland, or the remote Isles,

and the Debitor suffers the day of payment to elapse; it seems un∣reasonable, that for Debts which may be very small, he should be oblig'd to send to these remote and dangerous parts, to Charge the Debitor personally, and the Debitor may constitute a Procura∣tor at Edinburgh to pay, & sibi imputet, that he did not pay, and it is presumed, that at Edinburgh, which is communis patria, every man hath a Procurator, else Citations at the Peer and Shore of Lieth upon sixty dayes, where the man is in the Indies, were as unlawful as this is, and the performance as impos∣sible.

Notwithstanding of this Act, I find that a Charge of Horning upon six days, by a consent in the Clause of Registration, was sustained, though the person Denunced offered to prove that he could not obey the Charge, he living in so remote a place, Janu∣ary 1675. Meldrum contra Tolquhon: and though by this Act it be appointed▪ that the Denunciations upon such unlawful Ob∣ligations shall be null, and that the users shall be oblig'd to De∣nunce, and Charge of new, according to the custom of the Realm; yet I see not how this can be, for the Clause of Registration insert, being upon six dayes, or a shorter time, cannot be a sufficient war∣rand, to Charge upon more dayes, and so that new Charge would want a warrand, except this Act of Parliament shall be said to be the warrand thereof.

NOtwithstanding of this Act, appointing all Executions to be subscribed; yet in inferiour Courts,* 1.207 verbal Executions are oft sustained.

Though the word Executions is not derived from pure Latin, or Roman Custom; yet it seems founded on l. 2. ff. de re Jud. and is derived to us from the French, who have, and do always use it in the sense we do, Vid. Argent. Tit. des Executions.

VId. Act 29 Par. 11 Ja. 6.* 1.208

BY this Act it is justly ordain'd that Compensation be received,* 1.209 if instantly verified by Writ, or Oath of party before Sen∣tence, but that it be not at all received after Sentence, by way of Suspension or Reduction, so that the only Remedy in that case, is to pursue the Debt as accords: Which Act is extended to Decreets of the Session, as well where the Decreets are in ab∣sence, as where they are in foro, July 25. 1676. Wright contra Sheil: such respect is given to the Decreet of the Lords; but yet if Contumacy be purg'd, it is thought that Compensation may be received by way of Reduction, Had▪ December 20. and ge∣nerally Compensation is received against Decreets in absence, be∣fore inferiour Courts: June 18. 1662. Earl Marischal contra Bray.

Though by the Civil Law compensatio tollit debitum ipso jure, and so that it may seem that this exception is still receivable any way, even as the exception of payment, which is receivable against De∣creets of the Session in absence; yet even by the Civil Law com∣pensatio debet opponi, because it is facti, and so sibi imputet, the Debitor that compeared not to propone it, I find this Act is in terminis, observed in Holland, vid. Neostad. decis. 95.

THe intrometters with escheat Goods as well as the Donatar are oblig'd to pay the Debt contained in the Horning,* 1.210 whereupon the Gift proceeds.

Observ. 1. That though generally the Donatar is only thought lyable in this case, yet all intrometters with any part, though never so small, are lyable, and this is a kind of vitious Intromission, which makes the intrometter lyable in solidum, and not in quantum lucratur.

Observ. 2. That the Donatar will not be found lyable till af∣ter general Declarator, because it is only general Declarator that puts the Donatar in the Rebels place, as Spotswood observes, March 20▪ 1626. But if the Donatar delay to pursue a Declara∣tor, I think his negligence should not prejudge a Creditor, for the same reason also, a Donatar is not lyable if the Horning be null, except he has intrometted; but if he has intrometted, res non est integra, and so his offering to Renunce the Gift, will not be sufficient, March 15 1631. Fletcher contra Kid. It hath like∣wise been found that the Donatar will not be subject in payment of Annualrent, due after Denunciation, because the Act appoints him only to be lyable for the Debt contained in the Horning, and this Annualrent is due only after the Horning, March 15. 1631. Fletcher contra Kid, But this Decision may be doubted, since he being by the Act lyable for the Debt accessorium sequitur princi∣pale; and if the Debitor had got the Escheat himself, he had got∣ten payment of all.

Observ. 3. That this Act appoints Letters to be direct against the Donatar, and Intrometters, for payment upon six dayes.

* 1.211BY this Act such as reset, supply, or intercommune with de∣clared Traitors or Rebels, are declared lyable in the same pains, for the which they are Forefalted, or put to the Horn; and it is ordained that all the Subjects are lyable to search, seek, take, or apprehend them, till they be out of the Shire where they live, and to intimat to the next Magistrat, to whose bounds they have chased them.

Item, If any Vagabounds or suspect persons come to the Shire, every man is obliged to advertise some Magistrate.

Observ. 1. That here the Subjects are obliged, without be∣ing desired by the Magistrate, to search for, and apprehend Re∣bels, and so the Objection against the Bond appointed by the Council, January 1678. Wherein it was asserted, that no pre∣sent Subject was bound to take, or search for Rebels, was a most illegal Objection, expresly contrary, not only to this Act, but to the true interest of the Common-wealth, which obliges every man to do his utmost endeavour to keep the Countrey quiet: Nor can there be any thing more reasonable than that these who enter in a Society shall promote the good of the Society, by all possible means, and that these who have the protection of the Law, should persecute all such as oppose it; and this Duty to the King, in ta∣king such as are Rebels to him, seems to be implyed in the very nature of our Allegiance. But it may be argued, that this should only be extended to such as are Traitors, or at least to such as are Intercommuned, which is contrary to the express words of this Act, whereby all men are discharged to reset Traitors, or Rebels, contemnantly remaining at the Horn, so that the resetting all who remain at the Horn, is here punished; and this Act being de∣signed, as the Act bears, as a further addition to the former Law, must be extended against all Rebels, for the Common Law did formerly reach this far against the resetting of Traitors, and Inter∣communed persons, vid. Act 97 Par. 7 Ja. 5. And whereas it may be pretended, that this Act obliges only the Lieges to assist Magi∣strats in taking such persons. It is answered, that that was suffici∣ently secured by former Laws, and this Act obliges all the Lieges simply.

BY this excellent Act,* 1.212 it is provided that all Gifts of Escheat taken simulatly, either by the Rebel himself, or by others, to the behove of the Rebel, shall be null, for else the falling of their Escheat would be no punishment to Rebels, nor discouragement from Rebellion.

This simulation may be prov'd, either directly by the Oath of the Donatar, or may be inferred from presumptions, as all other Frauds and Simulations are, since the design of Fraud and Dissimu∣lation, being to palli••t and cover a Cheat, if presumptions were not sustained to astruct the Simulation, it could never be discover∣ed.

The first Presumption is, that the Gift is granted to the Children of the Rebel, and if the Children be unforis familiat, it is concluded to be a simulat Gift presumptione juris; and yet if a Child in familia, have a pe∣culium of his own. It may be alleadg'd that his Father as Administrator, being Debitor to him, he has taken his Escheat in his Sons Name for his security, but though the Children be forisfamiliat; yet by this Act of Parliament, there lyes presumptio juris against them, if this Re∣bel continue in Possession; and therefore the Children must prove that they have it for an onerous Cause, and thus is to be under∣stood that Decision of Dury, March 20. 1623. Lord Keith con∣tra

Denbolm; Where it was found that no Contingency of Blood, no not the being a Son, was sufficient to infer Simulation; but if this were sustained simply, as ordinarly it is, then Creditors may be easily cheated, and the Donatar might still continue to have the advantage of the Escheat, though not the possession of the Goods.

Likas, by this Act of Parliament, it is expresly provided that the Thesaurer may intromet with the Goods, if they be in the pos∣session of the Rebel, his Wife, or Bairns, which shews that the Parliament lookt upon this as a presumption to infer Fraud.

The second Presumption is, that the Gift was exped upon the Expence of the Rebel, though the Donatar was Creditor, ex∣cept in so far as the Donatar made use of the Gift, being Creditor for his own security, March 11. 1624. And if yet the Creditor was only Creditor, by buying of Land from the Rebel, and knew that there was a prior Right granted to another person. The Lords Declared that his Gift should not prejudge that prior Right, June 22 1669. And if the Rebel did once take the Gift blank, though he thereafter filled up a lawful Creditors Name therein, the Rebel procuring the Gift so upon his own expence, this will infer it to be simulat, and extinguish the Right, though the Donatar was truely a lawful Creditor, December 17. 1670. Lantoun contra Scot. By which it may be concluded, that though originally the Rebel may exped a Gift upon his own expences, for the behove of a lawful Creditor, where the Rebel takes the Gift himself, and thereafter fills up a lawful Creditors Name, that will not make it reconvalesce, nam quod ab initio vitiosum est tractu temporis non po∣test convalescere.

That the Gift was past upon the Rebels expence, is probable per membra Curiae (viz.) The Servants of Exchequer, and Keepers of the Seals, except the Donatar has made Faith at the passing of the Gift, that it was truely to his own behove, the simulation having been then suspected, because he who sought the Gift was the Rebels Son, December 4. 1669. And generally, if the Donatar in fortification of his Gift and Debt, offer to make Faith that the Gift is truly to his own behove, this would be sustained to purge any Presumptions of Simulation, December 12. 1673.

The third Presumption is the Rebels retaining Possession, but how long Possession would be sufficient to infer this Simulation, is in arbitrio judicis, for the suffering the Rebel to remain some time in possession is no presumption, even against a Son, since the Donatar must have some time to pursue, and recover Decreets, but if the Donatar suffer him to continue very long, this is pre∣sumptio juris & de jure, for though there were no Simulation in the the case; yet the negligence of the first Donatar would make place for a second, and even the Donators suffering the Rebel to possess three years, has been found to be presumptio juris, for infer∣ring Simulation, June 1666. Oliphant contra Oliphant.

There is a Title in the Civil Law de collusione detegenda, which though it run there only against Collusion inter dominos & servos, yet the whole matter of Collusion is there Treated by the Do∣ctors, and it is defin'd to be sub specie litis lusus, Vide Barthol. Ca••oll. de simulationibus, where this Subject is fully Treat∣ed.

By the last Clause in this Act, it is provided that the Thesaurer, or his Deputs, may cause secure the Houses of the Committers of the Crimes, upon the expences of the readiest of the Escheat Goods, that is like that annotatio bonorum, allow'd by the Civil Law, in Criminals against absents; and though the Act of Parliament spe∣cifies only that this may be done in Crimes, yet I conceive that all Rebellion is comprehended under the word Crimes; for in all cases, even for civil Rebellion, not only may the Thesaurer Seal till Caution be found, but even the Lords of Session will, upon a Bill, allow the Sealing of the Rebels Goods at the Donatars instance, till Caution be found.

WIlful setting of Fire in Coal-he••ghs is Treason,* 1.213 vid. crim. pract. Tit. Fire-raising.

THis Act is Explain'd crim. pract. Tit. Beggars and Vaga∣bonds.* 1.214

THis Act against Forestalling, is fully Explain'd,* 1.215 crim. pract. tit. Forestallers.

TAis Act punishing the Carriers of Wool, Nolt, and Sheep into England, by Escheating the Transgressors Moveables,* 1.216 is not abrogated by the Union of the Crowns, the Nations being still distinct.

THis Act against Deforcers is Explain'd,* 1.217 crim. pract. tit. De∣forcement.

THis Act is Explain'd, crim. pract, tit. Art and Part,* 1.218 num. 2.

THis Act declaring that none but actual Burgesses shall Traffick,* 1.219 is fully Explain'd, 5 Act 3 Sess. 2 Par. Ch. 2.

BY this Act all manner of persons, Inhabitants of Burghs, ex∣ercing any manner of Traffick, or having Change therin,* 1.220 shall bear Stent; Which Act was found not to extend to Indwellers, though they have the benefit of the Mercats, and had never any other Residence but within Burgh, and have the benefit of Seats in the Kirks, and so should at least pay Contribution for the Mini∣sters

Stipend, January 11. 1678. Town of Alerdene contra Lesk. And by the 275 Act 15 Par. Ja. 6. All such as have an hundred pounds of yearly Rent, may be Stented; but by 276 Act of that Parliament, they are only to be Stented according to the value of what Rent they have within that Burgh, and not according to what they are worth else-where; but it may seem that by the 275 Act, all who have an hundred pound to spend, ought to be Stented; that therefore Indwellers are to be Stented, though they have not an hundred pound of Rent in House-mail, or Trade, for the Act sayes, if they may spend, and not if they have; and there∣fore that the persons who come in accidentally to live in Town, should not pay; yet if they have no other constant Dwelling, save in Burgh, that in that case they ought to pay, because it is just, all Subjects should bear some burden, and they bear none else-where, to which nothing can be answered, but that the Act ordains only such to be Stented, as have Rents and Livings copu∣lative.

Observ. That by this Act one of every Craft is to be exeemed, as His Majesties Servant, from all Taxation, Watching, and War∣ding, such as the Kings Tailʒour, His Smith, &c. And yet this Act does not exeem them actually, but only allows His Majesty to exeem, if He pleases, so that except these be actually exeemed by their Gift, this Act will not exeem them. This priviledge is renew'd, Act 275 Par. 15 Ja. 6. And His Majesty by His Gifts to His Work-men, declares them to be exeem'd, conform to these Acts, whereupon the Council in anno 1680. did find they should not be stented; and all these priviledges are again Ratifi'd in the Parliament, 1681. But there being a Declarator rais'd of these priviledges before the Lords of Session in anno 1684. It was objected, first, That because these Acts being made in favours of the Kings Servants, whilst our Kings liv'd in Scotland, and they actually ty'd to Service, the saids Acts should not now take place, but should cease with the Service, whereupon they are sound∣ed.

2. Though Wrights, Masons, &c. Who are actually at present ty'd to serve, may plead this priviledge, yet the same cannot be crav'd by the Kings Barbers, Shoe-makers, &c. who never serve.

3. The said Exemption could extend no further than to the va∣lue of the imployment they had from the King; but if the Kings Smith, &c. have from the people, the imployment that other poor Smiths should have, it were not just that he should be exeem'd, which were to make them pay the value of the Imposi∣tions that should be put upon him.

4. That these Laws could not exeem from paying, for their other Trades; So that if the Kings Mason be likewise a Vintner, he should pay for his gain in that Trade.

5. These Acts of Parliament could only free from Watching, and Warding, which are inconsistent with personal attendence,

but should not be extended to Stents and Impositions, which were not usual before these Acts, since the general words of Laws are ordinarly restricted to what ordinarly happens in the time

6. Though these Exemptions could secure against Impositions laid on by the Town, yet they cannot secure against Impositions laid on in Parliament by voluntar offers, made by the Subjects themselves, in which those Trads-men must be considered as volun∣tary Offerers, as well as others, since they are re-presented in Parliament as well as others: And in which Act, Colledges and Hospitals are only exeem'd, and not they; this Debate is as yet come to no Decision.

BY this Act the Crafts-men living in Suburbs of Free and Royal burrows, are discharg'd to work,* 1.221 and their work declared con••••••••able; but this Act is not extended to Suburbs, that are erected in a Burgh of Barony, for these are priviledged by their erection, and are not meer Suburbs, but distinct Jurisdictions, Ju∣ly 21. 1629. and there is a Decreet arbitral betwixt Edinburgh and the Suburbs, wherein there is a Liberty allow'd to these who live in their Suburbs, to work to Strangers, but not to Towns-men. This Act of Parliament has likewise been extended, not only to Suburbs, but to all who were within the Liberties and Priviledges of Burrows Royal, though the saids places be not properly Sub∣urbs, and that the Act of Parliament discharges only the exercise of such Crafts in Suburbs adjacent to the saids Burrows, July 7. 1671. Town of Stirling contra Polmais, whose Tennents and Trads-men in Saint Ninians lived a mile from the Town of Stirling, vid. etiam, Durie March 21. 1628. and the reason of this Decision was, because such Un-free men as live within the Priviledges, do as well abstract the Trade of the Inhabitants, as those who live within the Sub∣urbs.

It may be doubted whether, since this Act of Parliament allows only the Provost and Bailies, or the Officers to intromet with, and Escheat the materials so wrought, if therefore the Crafts-men with∣in Towns may intromet, they being neither named in this allow∣ance; and because they are too interested to have had this power committed to them.

It may be also doubted whether, though they may Escheat the Goods, when they are actually taken, if they may by vertue of this Act, pursue the Un-free-men; for though there be no such warrand in this Act; yet it seems that without they have this allowance, the Privi∣ledge granted by the Act, would be useless, since it would put them to keep more Servants to catch the Inbringers, then the Priviledge deserves.

VId. Nota's on Act 74 Par. 14. Ja. 2. & crim. pract. Tit. Re∣missions.* 1.222

* 1.223THis Act discharging the Transporting of Skins forth of the Realm, under pain of Confiscation, is still in force, and was introduc'd to encourage our own Manufactors; these Skins when carry'd out, being wrought by strangers into several useful Com∣modities, and sold back to our selves at great rates; though this Act discharges only the carrying out of Calf-Skins, Hudrons, and Kid-Skins, yet by the 178 Act 13 Par. Ja. 6. This is extended to all other Skins; and though by this Act, the Confiscation is to be for His Majesties use, yet by that Act, the half belongs to the Appre∣hender.

Observ. 2. Not only the Transporting, but even the packing and pielling is found to be a sufficient ground of Confiscation; for pack∣ing and pielling is presumptione juris, concluded to be in order to Trans∣portation; but it is not presumptio juris & de jure, since to elide the Confiscation, it is sufficient to alleadge that the Skins were pack∣ed and pielled, in order only to an inward Transportation from one place of the Kingdom to another.

Observ. 3. That by the 45 Act Par. 1 Ch. 2. The Exportation of all wild Beasts Skins, and Shorlings, are expresly discharg'd; and by Shorlings are meant, Skins which have the Wool pluckt off, and comes from the word Shearing; but by that Act, power is given to the Exchequer to give Licences for Exporting of Skins as they shall find cause; and though the power to grant such Li∣cences, may seem to cast loose all these Acts, it being very pre∣sumable that they would be purchast for Money; yet that was thought necessary, because if our Trades-men knew that no Skins could be Exported, they would lessen the price as they pleas'd, and sometimes the Trads-men cannot make use of all the Skins in the Nation, and Skins are a considerable part of some mens Rent; nor should the Exchequer give Licences in any other case.

THis Act renews the 54 Act 6 Par. Queen Mary, Discharging all persons to stop the way to Free-burrows,* 1.224 or Sea ports, un∣der the pain of being pursu'd as Oppressors, and allows the Lords of Session to pursue the Contraveeners summarly without any Assize; which Act was necessary, because all actions of Molestations, such as this, was formerly ordain'd to be try'd by Assizes, and before inferiour Judges, 11 Act Par. 42 Ja. 6. From which Act these Tryals are excepted, because of their great importance, and that they require present expedition; for which cause the Civil Law allow'd several Interdicts against stopers of High-ways, Vid. tit. 10. l. 3. ff. 6. By the 38 Act 1 Par. Ch. 2. All High-wayes to Mer∣cat Towns are ordain'd to be twenty Foot of Measure, and the Justices of Peace are ordered to see the High-wayes made to have that Latitude at least: and by the Civil Law, via privata debet esse octo pedum in porrectum & 16. pedum in ansractum l. viae latitudo ff. de servit. prae. rusticorum via autem publica seu consularis tam lata esse debet ut currus obvii sibi invicem cedere possint Coepol. de servit.

rusticis, cap. 3. I find this Law for securing the High-wayes to ••oyal Burrows was very old in France, Argentorat, pag. 201. where he very well observes that Ita fit ut itinera quae ab agris paroe∣cii•• aut pagis in••hoantur l••••et in mercatum ducant publica dici non de∣bea•••• cum a mercatu ad mer••atum non ducant ut hoc textu sed e••si ab ur••ibus inci••iunt nec tamen in urbes aut alios mercatus ducant publica hac quidem lege non sunt. I find always that Ways leading to Burghs had a particular priviledge, by the Civil Law.

THis Act allows the Admiral no more Jurisdiction than he ex∣ercised before the death of King Ja. 5.* 1.225 Notwithstanding of any Specialities contained in their Infeftments, and it may be doubted whether the Admiral is to prove when he is challenged, that that for which he is challenged, was exercised by his Predecessors in the time of King Ja. 5. Or if such as Challenge the Admiral, are to prove what was the custom then. But the Admirals Juris∣diction is now fully clear'd by the 16 Act Par. 3. Ch. 2.

THis Act is Explain'd, Act concerning Provestries. Ch. 2 Par. 1 Sess. 1 Act 54.* 1.226

King James the sixth, Parliament 13.

THis Act discharging Mercats and Fairs on the Sabbath-day,* 1.227 was made at the desire of the General Assembly, as our History observes, Vid. Spotswoods History of the Reforma∣tion.

THis Act appointing such as contemn the Decreets of the Kirk,* 1.228 to be Denunced Rebels, is still in force, though it relates on∣ly to the Decreets of Presbyteries, and Presbyterian Judicatures, and though these be now abrogated.

THis Act is formerly Explain'd in the Act 48 Par. 3 Ja. 6.* 1.229

IT may be doubted whether this priviledge granted to Ministers,* 1.230 freeing their Stipends of all Impositions can be taken from them by Conventions of States, since Conventions cannot derogat from Acts of Parliament, and they can only offer their own Money, but cannot make Laws; and yet the Convention 1666. did burden Ministers Stipends with the Imposition then laid on.

* 1.231IT is observable from this Act, that some Crimes which are not Capital of their own Nature, become Capital by reiteration, though many Civilians doubt of this point, and yet crescente malitia crescere debet paena, l. 4. C. de servis fugit & plus punitur qui saepius deliquit, l. 8. §. 2. C. ad l. Jul. de vi pub.

* 1.232BY this Act the pains of such as find Caution to answer in Criminal Dyets, and report Criminal Letters, for Law borrows are hightned, every Earl or Lord two thousand Pounds; every great Baron a thousand pounds; every Free-holder a thousand merks; every Feuar five hundred merks, and these are called in our present stile, the pains of the new Act of Parliament.

Observ. 1. That it has been debated from this Act, whether this Caution should be found according to the quality of the Pursuer or the Defender; as for instance, if an Earl were pursuing a Feuar, should he find Caution according to the sum specifi'd for an Earl, or for a Feuar, and it was found that Caution should be found for five hundred merks only, according to the condition of the Defender.

Observ. 2. The quality of a Burges is not here specifi'd, and if he hold Land Burgage, he is de praxi considered as a Free holder, else he is considered as an Un-landed Gentleman, and if he holds feu of the Burgh, he is considered as a Feuar.

Observ. 3. The Unlaw of such as compear not at the first Ju∣stice air, is to be twenty pounds, that is to say, the Master who presents not his Tennents, is to pay twenty pounds over and above all other punishments, which is relative to the 6 Act 5 Par. Ja. 6. and is there Explain'd. Vid. supra obs. on Ja. 1 Par. 11 Act 129. Ja. 3 Par. 1 Act 5. Ja. 4 Par. 3 Act 27.

* 1.233THis Act annexing all annualrents payable to Prelacies, to the Crown, is abrogated, in so far as concerns Bishops, by the Act restoring Bishops in anno 1606.

* 1.234NOta, That such Customers and Searchers as cheat the Customs, are only punishable by Deprivation, and escheat of their Moveables; and therefore it seems that they are mistaken who think that such may be punished by Death, this being an extraordinary Theft, both as to the value, the preparative, and the ordinary punish∣ment not excluded.

It may be likewise doubted, whether such as enter in Compacts with Customers and Searchers, to defraud the Customs, may be punished by the same punishment, because they are art and part.

* 1.235REmissions are, notwithstanding of this Act, past without pre∣vious Letters of Slayns, or consents from the parties, but the party may get an assythment, albeit the Remission be past, all

Remissions are at present Registrated in the Thesaurers Register, conform to this Act, and in the Secretaries Register also, as all Pa∣pers are that pass His Majesties Hand.

THough this includes the Members of the Colledge of Justice in the priviledges granted to the Colledge of Justice with the Senators▪ yet of late by the 8 Act 2 Sess. 2 Par. Ch. 2.* 1.236 Free∣dom from Impositions is renew'd to the Senators only, vid. obs. on that Act, where it is Debated, that though Advocats be not there mention'd, yet they are not thereby excluded.

IT would seem by the Narrative of this Act,* 1.237 that all Patronages Gifted after this Act, should be discharged; and yet the Act discharges only such as are granted without the consent of the Be∣nefic'd persons; nor can I see how these Patronages should have been declar'd null, for want of the Benefic'd persons consent, since the Benefi••'d person being once provided, the Kings Disponing the Right of Patronage, could not prejudge them who were already entered; though the Act says, That these Rights were granted to the great hazard of the persons provided, for they being once enter∣ed, no posterior Right could prejudge them, and Declarators up∣on prior Rights might have prejudg'd them however; but it seems that the reason why the consent of the living Incumbent is requi∣site, is, because it is presumable that he would, and could inform truly to whom the Patronage belong'd, and in all Church Benefices, when Dispon'd, either the Demission, Resignation, or consent of Church-men, has been thought requisite.

The Statutory part of this Act was wrong Printed in Skeens Impressi∣on, for whereas it sayes, That all such Rights, where the Beneficod person was alive, and their consent had, and obtained thereto, shall be null: It should have said, Not had and obtained thereto; but this is helped in the last Impression.

VId. Crim. Pract. Tit. Murder. But it is fit to add,* 1.238 that this Act ordaining such as strick, or hurt a man within the Kings Palace, to be punished with Death, is consonant to praetor cum l. sequen. ff. de injuriis. vide etiam l. 23. §. 2. ad leg. juliam de adulteriis; and to the Law of Nations, Fritz. de palatiis principum cap. 12. Where he cites as the Law of Scotland, cap. 6. Stat. Will. By which, he who draws a Knife in the Kings Court, is to be struck through the Hand, and he that draws Blood is to lose the Hand, and he that kills any man is to pay twenty nine Cows to the King, and to assyth the party; which certain∣ly is meant of a Slaughter committed, where the Killer should not die, as in accidental Slaughters, or Slaughter committed in self-defence, for otherwise that Statute had been ridiculous, as it is now obsolet and innovated by this Act of Parliament; and yet I

think, that even by this Act of Parliament, he who stricks any man in self-defence, would not die; and if the King be absent, some think that Statuts punishing Offenders within the Palace, extend not to such cases, as Placa. l. 1. ••pit. delict. cap. 8. Though Menochius does extend those Statutes, even to that case; but to prevent this Debate, this Act 173, bears expresly The King's Palace where His Highness makes His Residence for the time, and it expresses the Inner-gate, to cut off the ordinary Debates, de consiniis palatii.

Though this Crime may be pursu'd Criminally, yet the Lords may take a Precognition of it, to the end it may be known how far they will remit the same to be punished by the Criminal Judges, in so far as concerns the stricking any man in their presence, as in Sir John Hay's ease and Sibbalds.

VId. Crim, Pract. Tit. Remissions Vid. supra observ. on Act 74 Par. 14 Ja. 2.* 1.239

IT would seem by the Narrative, that only such Writs as were not Written by Notars and common Clerks,* 1.240 who are notourly known, should have been declar'd null for want of the Writers Name; and yet the Statutory part declares all Writs to be null, without exception, which want the Writers Name.

Observ. 1. This Act is not by the Lords found to annul Seasines, and other Acts of Office, Written by Common-clerks and Notars, though the Writers Name be not design'd in them, but only Writs amongst privat parties, June 6. 1634.

Observ. 2. That though the Writers Name be not condescended on, yet the Lords will allow the User of the Writ to condescend who was the Writer; and though this Act of Parliament appoints that, before the inserting of the Witnesses; yet if it be insert in any place, it is sufficient: and though the Act appoints that it shall condescend upon the VVriters Name, particular remaining place, and Diocy; yet Diocies are now only condescended on, in Instru∣ments of Notars; but still there must be some Designation beside the Name and Sir-name, such as A. B. Servitor to such a man, which is sufficient; and if there be moe of one Sir-name, who where Servitors at that time, yet is not the User of the VVrit ob∣lig'd to condescend which of the Servants it was, but he who of∣fers to improve the said VVrit, must relevantly alleadge that of the Date of that Bond, he whose Servant the VVriter is Design'd to be, had no Servant at that time who did write such a hand; and for proving of this, must produce the Hand-writs of all these Servants at that time, February 7. 1672. Kirk-hill contra Ketle∣stoun.

IT was Debated upon this Act, whether the Lands of Duncow,* 1.241 though here annexed by a publick Law, were sufficiently an∣nexed, so as to exclude the Earl of Nithisdale, who pretended that a year before this Act he had a valid Right, under the Great-Seal from the King, and so could not be prejudg'd by a posterior an∣nexation, which behov'd to be salvo jure quoad him: To which it was Reply'd, that this annexation being by a publick Law, was not of the nature of Ratifications, which were salvo jure; and such Acts of annexation were in effect the Kings Charter, and be∣ing granted by a publick Act of Parliament, in favours both of King and People, they could not be taken away, but by another Act of Parliament, & sibi imputet, he who had the prior Right, and compeared not at the time of this publick Law, and objected it; but now after so many years, the King had at least prescriv∣ed a Right, by vertue of this Act, this case was not decided, but the Lords inclined to think that there was a great difference be∣twixt original annexations, where special Lands were annexed, as falling in the Kings Hands by a special Forefalture, or other cause which they thought could not be quarrelled by the Session, or other Inferiour Judicatory; and general Acts where Lands for∣merly annext, are only repeated, such as this is, in which Lands be∣longing to privat parties, may be by mistake repeated.

Nota, The Lands of Duncow, annexed by this Act, came to the King upon Forefalture of Robert Lord Boyd, anno 1477.

BEfore this Act,* 1.242 Decreets pronunced by Magistrates within Towns could not be the ground of a Charge of Horning, till a Decreet conform had been first obtained before the Lords; but by this Act, Letters of Horning are summarly appointed to be granted upon such Decreets.

It is observable, that though this Act says, That Letters of Horn∣ing shall be granted upon the Decreets of Burrows in the same way as upon the Commissars Precepts; yet it would seem that Commissars had no such priviledge at the time of granting this Act; for that priviledge is only granted them by the 7 Act 21 Par. Ja. 6. To which nothing can be answered, but that Commissars had that pri∣viledge, even at the time of this Act de praxi, though de jure it was only granted them by that Act for their further Security.

VId. Act 155. 12 Par. Ja. 6.* 1.243

THis Act giving the King twenty shilling of Custom of every Tunn of imported Beer,* 1.244 is Explained in the Observations up∣on the 2 Act 4 Sess. Par. 2 Ch. 2.

* 1.245IT is observable, that by this Act the Dean of Gild is founded in the power of judging all Cases betwixt Merchant and Mer∣chant, and is here declar'd to be the most competent Judge, be∣cause the most knowing Judge in such cases, and declar'd to have the same power that the like Judges have in France and Flanders, and in France such Cases are Judg'd by these who are call'd les consuls des marchants. The Lords have found that according to this Act, the Dean of Gilds Court is a Soveraign Court in suo genere, and not subordinat to the Towns Court, July 21. 1631. and they use to Advocat Causes from the Admiral, to the Dean of Gild's Court, upon this Act, it being declar'd that he is Judge to all acti∣ons betwixt Merchant and Mariner, though it be alleadg'd by the Admiral, that these general words should be restricted by the na∣ture of the respective Jurisdictions, and so the Dean of Gild should be only Judge competent betwixt Merchant and Mariner, in cases which fall out at Land, but not at Sea.

* 1.246THe Act related to here is the 36 Act 3 Parl. Ja. 4.

IT is observable from this Act, that it is there declar'd in gene∣neral,* 1.247 that Acts of Parliament should only in reason and equity extend ad futura, for regulating future cases; for though De∣claratory Acts may oft-times extend ad praeterita; yet Statutory Acts should only extend ad futura.

* 1.248THis Act differs not one word from the 170 Act of this same Parliament, and has been only repeated here by mistake.

* 1.249BEfore this Act, such as were at seid with one another, us'd or∣dinarly to fight together upon the Street of Edinburgh, and us'd to beat the Magistrates, or their Officers when they came to red them, and that truly gave rise to this Act, though the Nar∣rative here bears only, that several persons used to Deforce the Magi∣strates in their Execution of their own, or the Councils Decreets.

By the Act it is declar'd, That whosoever disobeys, or opposes the Command of the Provost and Baillies of Edinburgh, when they are Executing the Kings Commands, or Letters from the Secret Council, or Session, or the Ordinances of their own Burgh, shall be punished as Committers of Deforcement, as Seditious and Perturbers of the Common well.

It has been found that naked assistance at such Tumults, with∣out Arms, is not punishable by Death, though a person be killed in the Tumult, December 1666. But Convocation at all such Tu∣mults with Arms, is punishable by Death, if a person be Murder∣ed,

as was found, September 11. 1678. And the acting any thing, either by word or deed, was found to infer Death.

Observ. That the using Fire-weapons within Town is discharg∣ed by this Act; and long weapons, that is to say, Halbards, Picks &c. are only allow'd, lest innocent persons passing on the Street might be kill'd, but yet if Souldiers shoot in defence of their Prisoners on the Streets, they are not punishable; and this Act was found not to militat against the Kings granting Commissions to the Ma∣gistrates of Edinburgh, to raise a Company with Fire-locks within Town; for the Act discharges only Fire-locks without the Kings consent, and a Commission implys his consent.

THe Act here related to is the 159 Act 12 Par. Ja. 6.* 1.250

THis Act is Explain'd in the 7 Act 9 Par. Ja. 6.* 1.251

VId. Obs. on the 29 Act Par. 11 Ja. 6.* 1.252

THe Abbacy of Dumsermling was Dispon'd by Ja. 6. in a morning Gift to Queen Ann.* 1.253 This Lawyers call Morga∣neticum; and King Charles the First was Infeft in these Lands, as heir to His Mother.

Observ. That this Confirmation was under the Great Seal, and under the Seals and Subscriptions of the States.

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,* 1.254 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.

* 1.255BY 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.

* 1.256ALL 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.

* 1.257COmmon 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,* 1.258 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.* 1.259

THough by this Act, when Manses and Gleibs are design'd out of Church-Lands only,* 1.260 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,* 1.261 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.

* 1.262THese 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,* 1.263 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.

* 1.264THis 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.* 1.265

BY this Act the Duty granted by the States to the King upon Wines, is to be charg'd for by Letters of Horning;* 1.266 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,* 1.267 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,* 1.268 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,* 1.269 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.

* 1.270VId. observ. on the 13 Act Par. 3 Ch. 2.

* 1.271THough 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.

* 1.272IT 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.

* 1.273THe 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,* 1.274 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.

* 1.275BY 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,* 1.276 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,* 1.277 crim. pract. tit. Jurisdiction of the Lords, num. 7.

THis Act is explain'd, crim. pract. tit. Paricide.* 1.278

THis Act is formerly Explain'd,* 1.279 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.

* 1.280BY 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.

King JAMES the sixth, Parliament 15.

BY this Act Bishops are in effect restored to sit in Parliament, though the Act is cautiously conceived in favours of Mi∣nisters,* 1.281 who shall be provided to Bishopricks by the King; but yet the Bishops themselves were not restored to their Jurisdictions in spiritualibus, till the 2 Act 18 Par. Ja. 6. in anno 1606. This Act gave occasion of calling a General Assembly at Dundee, to whom the King proposed several Overtures, and it was condescended on, that fifteen Ministers should sit in Parlia∣ment, because so many Re-presented the Church in time of Po∣pery, but remitted to a Committee to consider what Revenue each Church-man should have for defraying that expence, and who should be elected.

In this Act likewise it is declar'd, That this Restitution shall be without prejudice to the General and Provincial Assemblies, and Pres∣byteries; and the Act of Parliament here related to Establishing these, is the 114 Act 12 Par Ja. 6.

IT is observable that Kirk-yeards have in many things in our Law the same priviledge as Kirks; and therefore the killing,* 1.282 or wound∣ing of men within Kirks, and Kirk-yeards, are punishable in the same way, 118 Act 12 Par. Ja. 6. and the Raisers of Frays in Kirks and Kirk-yards, are punished in the same way, 27 Act 11 Par. Ja. 6. and by the 83 Act 6 Par. Ja. 4. Fairs and Mercats are prohibited to be kept within Kirk-yards, as well as within the Kirk: as al∣so by the 86 Act, Quon. Attach. Courts Civil or Criminal within Kirks, or Kirk-yards, are forbidden; all which is conform to the Canon Law, cap. 5. de immunitate ecclesiarum & cap. 2 h. t. in sex∣to decretal. By this Act Letters of Horning are to be direct∣ed by the Lords of the Session, for bigging of Kirk-yard-dykes, and for making Stiles and Entries to Kirks and Kirk-yards. By which last Clause, it would seem also that Heretors would get Letters of Horning against any Heretor who lyes betwixt him and the Kirk, to give him a sufficient way to the Kirk through his Land, albeit the words bear only, That there shall be sufficient Stiles and Entries in the saids Kirk-yard-dykes: But when any thing is allow∣ed in Law, all is understood to be allowed, without which, that which is expresly allow'd cannot be useful: Yet I find by a De∣cision, June 27. 1623. betwixt Neils••n of Carcassi•• and the She∣riff of Gall••w••y, that the Lords refus'd to grant a Servitude through a privat Mans Lands, even for a way to the Church, ex∣cept the Pursuer could prove immemorial Possession; and to recon∣cile this Difference, it seems that every man must have some way to the Church, but that he will not have Right to any special way, if he seek the same upon the account of nearness, except he can prove immemorial Possession, Mornatius ad l. penult. ss. de just. & jur. shews that this Law is observ'd in France, Quaeritur, to whom a Coal found in a Church-yard, or Trees growing there, will belong, whether to the Heretor, the Poor, or the Pa∣tron, or if the Trees will belong to the Minister.

THis Act declares all Alienations of the annexed Property to be null,* 1.283 except where they are set with augmentation of the Rental; and therefore to this day, there is still some small aug∣mentation made; but it has been doubted, whether if the Char∣ter bear an augmentation; but yet it can be proven by the Exche∣quer Rolls, that the Lands pay'd more formerly than is exprest in the new Charter; if in that case the alienation will be null, and I conceive it should; for though the Feuer may alleadge that he was in bona fide, because of the former Charters; yet seeing the hazard by this Act of Parliament, he ought to have looked to the Exchequer Rolls.

I find the 233 and the following Acts till 240. of this 15 Parli∣ament of King Ja. 6, were at first Statutes of Session inserted in the Books of Sederunt, upon the 14 of March 1594. and here in 1597.

they are turn'd in Acts of Parliament, without mentioning that they had been Acts of Sederunt formerly, as uses to be done when the Parliament Ratifies such Acts; it seems that it was rather the Exchequers part than the Sessions, to have Regulated the Kings Revenue and Property, whereunto all the above cited Acts relate; but about this time, I find in the Sederunt Book, several Acts ingrossed, bearing to have been made by the Lords of Secret Coun∣cil, Session, and Exchequer, met together, which is like the several Chambers whereof the Parliaments of France consist, who con∣veen all together when any solemn arrest, or Decision is to be pro∣nunced in purpuris, as they call it; and these Acts being Decla∣rations of what was Law in relation to the Kings Property: It was more proper for the Session to have made such Acts, than for the Exchequer, who raise the Kings Rents conform to Law, but declare not what is so.

* 1.284THis Act declares that all alienations of the annext Property are null, if they be set otherwise than in Feu-ferm; and therefore if any part of the annext Property be Dispon'd to be hol∣den Blench, or Ward, the alienation is null: and I conceive the true reason to be, because originally the annext Property was allow'd to be Dispon'd; for improving His Majesties Rent, which cannot be, except where there is a yearly Rent pay'd; and albe∣it sometimes the King and Parliament may dissolve the annext Property in order to a Disposition to be made to a person who has deserv'd well of the King and Estates, in which, the improving His Majesties Revenue is not design'd; yet the general nature of Annexations ought not to be altered upon such accidental ac∣compts.

THis Act annulling all Rights of the Kings Castles, Parks, Coal-heughs,* 1.285 &c. being annext, was formerly Statuted, 204 Act 14 Par. Ja. 6.

* 1.286THis Act is fully Explain'd in the 41 Act 11 Parliament, Ja. 2.

* 1.287THis Act declares that the Assize Herring is a part of the annext Property, and so cannot be set in Tack, nor Dispon'd; As∣size Herring is a certain measure of Herring due to the King out of every Boat; and the meaning of this Act is, that it cannot be set in Tack without a competent Duty, for it is set in Tack for a just avail, and could not be well otherways Collected; but this being a Casuality, it is jactus retis, and so except the Duty be almost elusory, it is hard to quarrel it; ex hoc capite, they were formerly annext by the 176 Act, 13 Par. Ja. 6.

THis Act Discharges all Offices of Heretable Chamberlainries,* 1.288 and all free Gifts and Discharges of the Kings Property; but to cheat this Act, the Feuars suffer the bygones to ly unpay'd, and then obtain Discharges, or else they obtain Tacks of their own Feu-duties for payment of a small and simulat Tack-duty, call'd by the Romans as. Cassianus.

BEcause the annext Property could not be Dispon'd without Dissolution; therefore some to cheat these excellent Laws,* 1.289 obtain'd Dispositions of the Feu-ferms payable to the King, for pay∣ment of a Feu-duty; and therefore these feudisirmae feudisirmarum are here discharg'd and annull'd.

THese Acts are formerly Explain'd in the Act concerning the thirds of Benefices, viz. Ja. 6 Par. 1 Act 10. which are now obsolet,* 1.290 Ministers being otherways provided.

OBserv. That Acts of Parliament are to be observ'd by the Lords of the Session,* 1.291 except they be particularly abrogated in express terms, vid. Gen. obs.

THis Act is now useless,* 1.292 Ministers being otherways pro∣vided.

ALL Vassals are oblig'd to Exhibit their Evidents to their Supe∣riour, not only by Improbations, but in Exhibitions;* 1.293 though in Law nemo tenetur edere instrumenta contra se; and the reason of this Speciality is, because the Superiour is dominus dire∣ctus, and so has a true interest in the Land; and if the Vassal pretend any interest, he is oblig'd docere de titulo, to shew his in∣terest, and to instruct the Superiour in what is due to him; and the King in our Law is presum'd to be Universal Superiour of all Lands; and therefore may by a Proclamation, or by way of Action, or by a Statute, as here, ordain all Evidents to be pro∣duc'd betwixt and such a day; but nothing save a Statute or Im∣probation can declare the Evidents to be null, if not produc'd as here; and since an Improbation could not be universal, this Sta∣tute was necessary in these times, when His Majesties Revenue was not established, nor known.

FEus are declar'd null for not payment of the Feu-duty,* 1.294 either by the Clause irritant contain'd in the Infestments, declaring that if two Terms run, the Feu shall be null; or by this Statute declaring that if the Feu-duty be unpay'd for two years together, the Feu shall be null: But there is this difference betwixt Irri∣tancies upon this Act, and these contained in the Infestment, that the Irritancy upon this Act may be purg'd at the Bar, but Irritancies

upon Clauses in Infestments cannot be purg'd at the Bar, because they are incurr'd by paction betwixt parties, which the Lords can∣not alter; for the Superiour having given out the Feu upon that express condition, it is not just to alter what was expresly Treat∣ed amongst parties, December 1. 1664. Laird of Pourie contra Hun∣ter. But yet I see no reason for this distinction, since this Act ap∣points expresly that they shall be null, in the same manner as if there were a Clause irritant contained in the Infestment, nor do I see how the Lords can alter what is so expresly introduced by a clear Statute.

If offer was made of the Feu-duty, but refus'd, yet this will not be sustain'd when Reduction is pursu'd ex hoc capite, except it be instantly offered of new at the Bar; nor will a Term be al∣lowed for purging, as was found in the former case, in which the Lords also inclin'd to think that compensation will not be sustain'd to take off this irritancy; for though Compensation tollit debitum, yet there is a reverence due by the Vassal, and which is considered more than the value of the Feu-duty it self; but yet if the Vassal come and offer humbly to his Superiour, before the Term of payment, Compensation of as much as is due to him in payment of the Feu-duty, Quaeritur, if this will not be sufficient, it may be doubted whether a minor will be restored against the not payment of his Feu-duty, since it is not just that the Superiour should be prejudg∣ed by the minority of his Vassal, or that the nature of the Feu should be thereby inverted; and it may be also doubted whether this irritancy will be incurr'd by him who was hindred vi majori from payment, as by being taken and detained Prisoner, or carry∣ed to remote Countreys, since by the Feudal Law in other cases, this does excuse a mora, and from all the incon••eniencies that fol∣low upon it.

4. It may be doubted if this legal irritancy will be incurr'd where the Charter bears another special penalty and Certification, in case of the Vassals failʒie in payment of his Feu-duty, without substituting the same in the room of the Legal one, or expresly re∣nuncing it.

5. Quid juris, Where there are more Heirs-portioners, if the failʒie of one of them will prejudge the rest, seing quoad the Supe∣riority, he is oblig'd to own none but the eldest Daughter.

6. If an offer made of the Feu-duty, not by the Vassal but by a third party, will stop this caducity, seing the Feudal Obli∣gation on the Vassals part is a personal Recognizance, and ought to be perform'd personally: and on the other hand these irritan∣cies are unfavourable, and ought not to be extended.

7. Quaeritur, If the Vassals offering Feu-duties for years yet to run, if that offer will hinder the incurring the irritancy for these years, seing a Debitor may in Law pay before his day come; and what if it be such a Prestation as must be performed yearly.

8. If the Vassal will amit his Feu, for not offering where he had a

pretext to doubt who was his true Superiour, and what he is to do in that case.

So much use the Lords to favour the Vassal against such severe irritancies, that a Retour bearing in the first part of it, an irritan∣cy for not payment of the Feu-duty si petatur tantum, they allow∣ed the Vassal to purge, though in the posterior part of the Retour, these words were omitted in the Clause irritant it self, February 18. 1680. Earl of Mar contra his Vassals.

Like to this irritancy was that of the Civil Law, whereby non solutio pensionis per biennium in civill Emphiteusi & per triennium in Emphiteusi Ecclesiastica efficiebat ut Emphiteuta a jure suo caderet; by the Civil Law the irritancy & mora in not payment, was not purgeable, but by the Canon Law it was.

In Tacks also with us, the not payment of a Tack-duty for two years or terms infers an irritancy, November 23. 1609. Murray contra Nisbit. March 9. 1611. Seton of Baro contra Seton of Pitmedden, which is also conform to the Civil Law, l. 56. ff. locati.

THis Act is Explain'd crim. pract, tit. Usury.* 1.295

BY the 18 Act 1 Par. Ja. 6.* 1.296 The bearing and shooting with Culve∣rings or Daggs, without the Kings Licence, is forbidden under the pain of losing the Right Hand; and that Act is here Ratifi'd, and thereto is added Confiscation of Moveables: and by the Act 6 Par. 16 Ja. 6. It is appointed that the Contraveeners of these Acts, may be pursu'd, either before the Council or the Criminal Court, and when they are pursu'd before the Council, it is pro∣vided that they shall not lose the Right Hand.

It may be argu'd from this Act, that where there are two punish∣ments appointed by two different Laws, the last is not added to the first; but either it antiquats the first, or else either of the two can be only regularly inflicted, for else this Act need∣ed not say, s••••a that the ane pain shall not stop nor stay the o∣ther.

From that 6 Act 16 Par. It may likewise be observ'd, that the Secret Council are not Judges competent to Life and Limb, such as the amputation of the Right Hand. By the Lex Julia It was lawful to carry Arms without Rome, but not in the Town, but they were every where thereafter Discharg'd, Tit. 46. lib. 11. C. ut armorum usus inscio principe interdictus sit.

BY this Act is Ratifi'd an Act made at Dundee, by the King,* 1.297 His Nobility, Council and Estates, which was an Act of the Convention of Estates, for the Convention of Estates ordinar∣ly considered the matter of Coinage; nor needed that a Parlia∣ment, because Coinage is a part of the Prerogative; and by the E∣states there were mean'd some of every Estate, taken by the King for advice.

From this Act it was urg'd in the Lord Hattons case, That 1. By this Act it is clear that we had a different Standard from England, which is to be eleven pennie fine.

2. That it was lawful to melt down current forraign Coyn, because this Act allows it to be us'd as Bullion.

Nota, This is the first Act that mentions the General of the Mints Office, as different from the rest.

BY this Act it is clear that the Convention of Estates made Acts also discharging the Transportation of Wool and the like;* 1.298 and this Act as to Wool is again Ratifi'd, but a power is allow'd to the Exchequer to Transport Wool (contrary to this Act) Act 40 Par. 1 Sess. 1 Ch. 2. But even this Act discharges only bypast Licences, but not Licence for the future, for these are allow'd even for Wool by the 254 Act of this same Parliament.

* 1.299BY this Act Customs are declar'd to be due to His Majesty of all that is brought in from forraign Nations; and by the 27 Act Sess. 3 Par. 1 Ch. 2. The ordering and disposal of Trade with forraigners, is declared to be His Majesties sole Prerogative; and therefore some think His Majesty may impose upon forraign Com∣modities what he thinks convenient; for since he may discharge the Trade, if He pleases; it seems to follow, that He may burden it as He pleases.

By this Act an a, b, c. of the Customs is to be put upon all Com∣modities, that is to say, a particular index of the several Customs imposed upon every several Commodity, is ordain'd to be made ac∣cording to the Letters of the Alphabet, and this has varied in several ages; the present a, b, c. being made by order of the Parlia∣ment 1661. vid. statut. David. 2. cap. 12. num. 3. where this pri∣viledge as to paying of Customs, is formerly declar'd; and by the Canon Law this was likewise declar'd lawful to Princes, vid. perez. ad lib. 10. C. tit. 18. num. 13. & l, 5. C. de jure fisci, where it is said, officialibus v••lentibus ea capere debet acquiescere.

From these words of this Act, Albeit it cannot be deny'd that His Majesty is a free Prince of a Soveraign power, havand als great Li∣berties and Prerogatives be the Laws of this Realm, and priviledge of His Crown and Diadem as any other King, Prince, or Potentat whatsoever: It is observable, that our Kings are here acknowledg∣ed to be absolute and Soveraign Monarchs, as is likewise more ful∣ly declar'd by the 1 Act Par. 18 Ja. 6. In which it is said, Whom the hail Estates of their bounden duty, with maist hearty and faith∣ful affection, humbly and truly acknowledges to be Soveraign Monarch, absolute Prince, Judge and Governor over all Persons, Estates and Causes, both Spiritual and Temporal within His said Realm: By nei∣ther of which Acts, I conceive our Kings are so absolute, as that they have a Tyrrannick, or Despotick power, but that they are so absolute, as that they have power to do every thing that is just

and reasonable, though they be not thereto empowered by par∣ticular Acts of Parliament, and therefore they are ill Subjects, and worse Lawyers, who allow the King to do nothing but that for which he can shew an Act of Parliament; since his being an abso∣lute Monarch implyes this innate Power; and therefore it follows by a better consequence, when any thing is contraverted, that the King may do the thing in controversie being reasonable, if his power be not as to that point restrained by a particular Act of Parliament.

It is likwise very observable that this power of absolute Monar∣chy does not flow from the people, but is his own Right, for no Act of Parliament grants the King any Prerogative, but only declares by way of humble acknowledgement what his Preroga∣tives were, principibus, says Tacitus, summum rerum judicium dii de∣derunt, subditis obsequii gloria relicta est, lib. 4. Armal. vid. observa∣tions on the 15 Act Par. 1 Ch. 2. where our Parliament acknow∣ledges that our Kings hold their Crowns from God immediatly, Vid. Act 31. Par. 5 Ja. 3.

I know some pretend that the Kings power is here declar'd to be absolute only in opposition to the Pope, and implyes no more but that he did not depend upon the Pope; but this is very groundless, for he is here declared absolute in relation to his laying on of Customs, in which the Pope is no way concern'd; and generally the Kings power in relation to Ecclesiastick Rights, is said, to be supream not absolute; and in Civil Rights, is said to be absolute, and not supream.

BY this Act English Cloath,* 1.300 and all other English Commodities made of Wool, are forbidden, for the incouragement of our own Manufactures; but since the Union this prohibition is taken off, and a great Custom is only impos'd by the 13 Act Par. 1. Sess. 3 Ch. 2. but are thereafter upon the erecting of our Manufactures, absolutely discharg'd by the 12 Act Par. 3 Ch. 2.

THese Acts ordaining all Ships to have special Cocquets,* 1.301 contain∣ing an Inventar of the Goods which they bear, and the names of the Merchants and Owners, are yet in observance; but the Merchants do not still make Faith upon these points, as is appoint∣ed by this 257 Act: and if the Keepers of the Cocquet absent themselves to the prejudice of the Merchant, or take more for the Cocquet than the sum of fourty shilling, they are to lose their place, and repair the Merchants damnage by the 50 Act Par. 1. Ch. 2.

THis Act and the seven following Acts,* 1.302 till the 61. are very clear and need no Observation; only by lossing of Goods in these Acts is meant breaking of Bulk.

THis Act is but a Branch of the 245 Act.* 1.303

* 1.304THis Act appointing three Burghs-Royal to be made, one in Kintire, one in Lochaber, and one in the Lews, is not only not in observance, but the Erection of a Burgh-Royal in the Lews was unjustly oppos'd by the Burrows in anno 1636. upon pretext that it would communicat their priviledges to Forraigners and Strangers, viz. Hollanders who offer'd to come and settle there; whereas it would only have dilated and improv'd our Trade, and these Forraigners had presently become Scottishmen.

* 1.305BY the 119 Act Par. 7 Ja. 6. Inhibitions and Interdictions are to be Registrated in the Sheriff-Clerks Registers: but by this Act all Letters of Horning, Inhibitions, Interdictions, and their Executions are to be Registrated in the Registers of the respective Bailliaries, Stewartries, or Regalities, within which the persons dwell, against whom these Executions are; but if these persons be out of the Countrey, they must be Denunc'd at the Mercat Cross of Edinburgh, and Peer and Shore of Lieth, and not at the Head Burgh of the Stewartry, Bailliary, or Regality, July 4. 1666. Cun∣ninghame contra Cunninghame; and that because this Act of Parlia∣ment speaks only of persons dwelland within the Kingdom: but it may be yet doubted, whether the single Escheats of persons out of the Countrey may fall upon Denunciations at the Mercat Cros•• of Edinburgh, and Peer and Shore of Lieth? or whether Liferent-Escheats will fall, except the Rebel be Denunced at the Head Burgh of the Shire, Regality, or Stewartry wherein his Lands lyes? since if he had been within the Countrey, he ought to have been Denunced in the Respective Jurisdictions within which the Lands ly.

Albeit this Act appoints all Letters to be executed within Re∣galities and Stewartries; yet if these Jurisdictions have no known Head Burgh, the Escheat will be sustained upon a Denunciati∣on at the Head Burgh of the Shire, January 7. 1677. Scot contra Dalmahoy.

* 1.306BY this Act all Hornings, Relaxations, Inhibitions, and Interdi∣ctions that were to be Registrated in inferiour Registers, are ordain'd to be presented Judicially before a Notar and four Witnes∣ses; which formality is thereafter found not to be necessary, and is abrogated by the 13 Act Par. 16 Ja. 6.

* 1.307VId. crim. pract. tit. Theft.

* 1.308BEcause the Money had risen at this time to a great value, so that the same piece of Money which passed formerly for one penny, was worth ten the time of this Act; therefore it is justly appointed by this Act, that all the Unlaws shall be raised, so that the same Delict which was Fined only in twelve pennies before the first

of March 1542. (that is to say, before the first Parliament of Queen Mary) should be Fineable in ten shilling of the Money cur∣rent the time of this Act, Gel. lib 20. c. 1. tells us that the Romans were in this same manner forc'd to augment the penalties of the twelve Tables, because Lucius Veracius, took pleasure to beat all that past him, because he was only to pay twenty five Asses for every blow, according to that Law.

THis Act is Explain'd crim pract. tit. Beggars.* 1.309

FRom this Act it is observable that he that is charg'd with Lawborrows, shall be as lyable in the Contravention,* 1.310 as if he had found Caution, though he has not found Caution; it be∣ing unjust that by his contempt he should put himself in a better condition; and it is by the same reason that an appearand Heirs Liferent escheat falls to his Superiour in the same way, as if he had entred; since it is unjust that the Superiour should be prejudg'd by th•• appearand Heirs lying out.

Observ. 2. That by this Act when any man finds Caution, be∣ing charged with Law-borrows, he who raises Lawbor∣rows has action against either principal or Cautioner at his option, as in other pecunial Obligations; which words, viz. as in all other pecunial Obligations, are added, because by our Law, he who is a Cautione•• ad factum praestandum (such as they are who become Cautioners, for Executors, Messengers, or Tutors, &c.) is only lyable after the Principal is discuss'd, because they being only Cautioners for the Principals performance: It must be first known, whether the Principal has performed, and thus the beneficium discussionis; that was of old competent by the Civil Law to all Cautioners, is only competent by our Law to such Cautioners only as become Cautioner•• ad factum praestandum.

THis Act appointing that the pains of the general Bond,* 1.311 shall be divided betwixt the King and the party, is to be under∣stood of the general Bond of Lawborrows, which is appointed by the 3 Act Par. 2. and 12 Act Par. 6 Ja. 2. even as the pain of spe∣cial Lawborrows, is to be divided betwixt the King and the par∣ty, by the 77 Act Par. 6. Ja. 6. for that Act 77 related only to privat Lawborrows, at the instance of privat parties; and there∣fore this Act was necessary in the case of general Lawborrows, ex∣acted at the Kings instance, for the security of all His Subjects, from such as he thinks lyable to suspition.

It was and is ordinary for the King and Council, to Charge He∣retors who are at feid to give Bonds of assurance to one another, and that upon six hours advertisement, under the pain of Rebel∣lion, vid. the Council Registers, July 26 1582. and which is a great instance of the Kings power allow'd him by Law, against those whom he has reason to suspect.

* 1.312THe Rubrick of this Act is wrong, for Sheriff Clerk bring not their Books to the Exchequer, but to the Lord Regi∣ster.

* 1.313BY this Act it is appointed that all such as are Commissioners for Parliament shall be authoriz'd by the Subscription of a great number of the Barons then present, and the Subscription of the Clerk of the Convention, else to be null, which Act was found not to be in Desuetude, by a Decision in the Convention, July 1678. where it was found likwise that this Act extended to Commissi∣ons for Conventions, as well as to Parliaments; for though this Act speaks only of Parliaments; yet Parliaments and Conventions being called the same way, the Commissions should have the same Solemnities, and the reason why the Sheriff-Clerks Subscription is requisit, is, because he is the publick Servant of the Shire, and so it is presumable that he will mark exactly all that was done, and will not suffer counterfited Subscriptions to be put to Commissions, being to be lyable himself, whereas otherwise Commissions may be obtruded upon the Convention with false Subscriptions, as was done in that same Meeting; and which dangerous falshood can∣not otherwise be well fastened upon any other, since the Com∣missioner may justly alleadge that the Commission was so granted to him, and one may be chosen a Commissioner who is absent, in which case he cannot know who sign'd.

* 1.314BUrrows having great Freedoms and Priviledges from the King, are therefore oblig'd to have sufficient Prisons, for receiving such as are attached for Crimes and Debts; which Act was found to oblige Baillies of Burghs of Regality, as well as Burghs Royal, Ju∣ly 7. 1668. and Stewarts of Stewartries, June 18. 1670. and these words of this Act, By the Sheriffs to Stewarts and Baillies of Regali∣ty, are wrong Printed, for the word to should be or; But this Act was not found to oblige Baillies of a Burgh of Barony, March 13. 1623. Nor Bishops Baillies, March 21. 1627. But the Bail∣lies of the Head Burghs of Stewartries were thought to be oblig'd by this Act of Parliament to receive Prisoners; albeit the Act of Parliament appoints them to be presented only to Stewarts and Bail∣lies of Regality; but speaks not of Baillies of the Head Burgh of the Stewartry, June 18. 1670. Cheap contra the Baillies of Falkland: Where it vvas likevvise found, that the Baillies keeping a Rebel eight or ten dayes in a privat House, and thereafter Imprisoning him, vvere not lyable super hoc medio, except he escaped by their negligence, or the insufficiency of the Prison; and it seems by the Act of Parliament, that these Burghs are only oblig'd to have Pri∣sons, vvhich have Provosts and Baillies; for the Act appoints the Prison to be upholden by the Provost, Baillies, &c. though the Ru∣brick sayes, that Prisons should be Bigged within all Burghs, and it may be doubted from the vvords of the Act, vvhether Burghs

vvhich have no Common-good should be lyable, especially seing Magistrats are oblig'd to keep Prisons for the Kings use, because they have a Common-good from Him.

If the Magistrats do not receive Rebels, or have not sufficient Prisons, they are lyable for the Debt, and that vvithout calling the principal Debitor, since the Magistrats are lyable ex suo delicto, and these Jails are found not to be sufficient vvhich vvant Cat-bands, and outward Chains, because the Prisoner cannot force those from vvithin, but the Prison being sufficient, and sufficiently Guarded, vis major, is a sufficient Defence: and though this Act says only, That they shall secure persons presented to them; yet they are found to be oblig'd to search any House vvhere the Rebel is said to be, Ju∣ly 2. 1669. Farquhar contra Magistrates of Elgin; and though this Act bears, That they shall detain all such Prisoners upon their own Expence, yet this is only extended to Prisoners taken ob vindictam publicam, but it is indulg'd to the Tolbooth of Edinburgh, That they shall not be oblig'd to receive any who are offered to Prison by privat parties, till the presenters find Caution to aliment them.

This Act appoints those Prisons to be made for sure Imprisoning, Keeping, and detaining of such Prisoners as are presented, and therefore the Magistrats cannot let them out, either to Church, or to go about any of their Affairs, hovv important soever, though vvith a Keeper, since squalor carceris is thus eluded; and there∣fore in such cases the Magistrats must be authorized by a Warrand from the Secret Council, or Lords of the Session, and that by an Act of Sederunt in anno 1671. and if the Rebel be suffered to escape or go abroad, the Magistrats vvill not only be lyable, but they vvill get no relief from the Cautioner, though they take Assignation to the Debt, since tenentur ex proprio delicto, and the Cautioner is pre∣judg'd of his relief by that their Delict, January 24. 1668.

THis Act is formerly Explain'd in the 1 Act Par. 9 Ja. 6.* 1.315

THis Act is formerly Explain'd in the 153 Act Par. 12 Ja. 6.* 1.316

SInce by this Act all Burgesses are to be Stented according to their Rents, and holding within Burgh:* 1.317 it may be doubted if a Burges have no actual Trade, but only Money owing him, by per∣sons without the Burgh, if he may be Stented according to that E∣state, since it is no Rent, nor holding in Burgh; but the answer is, that mobilia semper sequuntur personam; and therefore he may be Stented according to that Money: it may be doubted if Gentle∣men who never had any Trade, but dwell in the Town very long, may be Stented, though they be honorary Burgesses only. Item, If they can Stent for Ministers Stipends, Strangers within Burgh, who are not at all Burgesses; and this Act seems to imply, that Inha∣bitants as well as Burgesses, may be Stented according to their Estates within Burgh, and that all who have advantage by the Mi∣nistry should pay Ministers.

* 1.318THere are two ways of Levying Subsidies in Scotland; the one is by Taxation, which was the old way, and which Taxation was uplifted according to the Retour: The other is by way of Cess, in which the Subsidie is uplifted according to the late Valua∣tions, wherein every mans Land Rent was given up, as presently possess'd.

The Subsidie granted by this Act, is by way of Taxation, and the old way of uplifting Subsidies by Taxations, may be fully here∣in seen, and which is very fit to be Read upon that accompt; and in which it is evident that the Clergy pay'd the one half, inclu∣ding the Erections; but in anno 1666. a proposal being made that the Subsidie then offered, should be uplifted by way of Cess, and not by way of Taxation.

These ensuing Reasons were represented against that proposal, and which I have here insert, because they tend very much to the clearing many of our old Laws and Customs.

The Reasons were, 1. That the Rule and Way for uplifting Taxations has in all ages been according to Retours, and the Tax∣ed Rolls until these late unhappy and irregular times; from which it is humbly conceiv'd a Rule and Presedent ought not to be taken. It is beyond all question, this being the good old way, though it were upon no other account, ought not to be chang∣ed, the danger and inconveniency of the alteration of ancient Laws and Customs, being so great and obvious from the late experience of these Kingdoms, that this age needeth not to be put in mind of the same, but may be a sad remembrance to poste∣rity.

2. The foresaid way is only now the legal way wherein Taxa∣tions can be uplifted at this time, seing the same is determined and authoriz'd by ancient and uncontroverted Customs in all ages, and beyond memory, and by the Law of Nations, and the funda∣mental Law of this Kingdom; ancient National Custom is Law, and of as great force as Statute, and is the great Basis and foun∣dation of the Power, and Rights, and Property of the Prince and People, which for the most part are warranted and secured by the Common Law and Custom, and not by express Act of Parliament and Statute.

3. This way of uplifting Taxations and the proportions of the same, payable by the respective Estates, is designed and establish∣ed by express Laws and Acts of Parliament, so that the same cannot be altered but by a Parliament, which only has power to repeal as appears by the 56 Act Ja. 3 Par. 7. intituled, These Retours should contain the Old and New Extent; and the Act 229. Ja. 6 Par. 14. Ordaining all Feu-lands annex'd, and other Feu-lands vvhatsomever to be retour'd, and vvhen any Taxation or Im∣post is to be rais'd, that the Feuers shall be charged according to the Retour; and by the 229 Act Ja. 6 Par. 14. Ordaining His Ma∣jesties Property to be Retour'd, and such Lands as are dissolv'd

and dismembered from Baronies to be Retour'd, and charged ac∣cording to the Retours, in order to the payment of Taxation, and divers others, and in special all the Acts of Parliament concerning the granting and uplifting Taxations.

4. Whereas it is pretended by the Heritors of the Western Shires, that their Retoures are higher than in other Shires, and that it should be a more equal way that the Taxation should be uplifted as C••sses, according to the Valuation, without respect to Retours; these Gentlemen have no reason to complain, being their own Deeds, procured by them, upon the verdict of their own Friends and Neighbours per fideles homines patriae, and according to which they have pay'd not only Taxations, according to the old extent; but His Majesties Casualities of None-entry, Relief, and siklike, ac∣cording to the New Extent contain'd in the said Retours, and has been also in use to uplift the like Casualities from their own Vas∣sals, according to the said Retoure; That the Retours should be al∣together taken away, both as to Old and New Extent, it is con∣ceiv'd that they will not desire, seeing if their Retour should be lessened, as to the New Extent, it would be an irrepairable preju∣dice to His Majesty, as to his ordinary Benefite and Casualities of None-entry, Relief; and siklike a prejudice to themselves, as to the same Casualities due, and payable to themselves by their Vas∣sals, and what incongruity should it be, that the same Retour should be altered as to the Old Extent, and should be stated as to the New, and that it should be still a Rule, as to their own inte∣rest and benefite, and not as to the payment of the Taxation to his Majesty, as it has been in all ages, it being also considered, that they cannot say that the Lands are valued unjustly by their Retours, and extend to more than the true value, the time of the Retouring of the same, and since that time they cannot deny that they are improven for the most part above any proportion.

5. The interest, and consequently the way of proceeding of Lawful Princes; and Usurpers being so different and opposite, that as Princes are patres patriae, and do cherish and intend the flou∣rishing of their Subjects; so by the contrary, it is the interest and practice of Usurpers deglubere, to squize and oppress the people, that they should not be in a capacity to shake off the Yoke: it is neither the honour nor interest of the Countrey to take a pattern and rise from the Usurpers to overturn the ancient Law of the King∣dom, especially in the matter of Taxations, seeing the necessity and fatal course of these times, in order to maintaining of War a∣gainst his gracious Majesty, and his blessed Father did not only require a Taxation, which was an easie burden to the people, and were chearfully granted, and oftimes offered to his Majesties Royal Predecessors as an aid and subsidie, when their occasions did call for the same, but the Usurpers were driven to exact a considerable part of every persons Estate, as a constant Tribute, under the no∣tion of Taxt and Loan Maintainance, Cess and such like burdens, which cannot be remembred without horrour; and in order to

the same, to introduce a new way by Valuation, whereas his Ma∣jesty is to have an ordinary Taxation; and therefore there is no reason but that the same should be rais'd in that good old and or∣dinary way, that has ever been used in the time of his Majesties Fa∣ther, and his Royal Predecessour.

6. The way of Cess, both as to the manner and thing is so hateful to the Body of the people of this Kingdom, that though exhausted in a low condition, they did offer, and chearfully grant to His Majesty a constant yearly Taxation and Annuity, during His Majesties Life, of 40000 pound Sterling, upon consideration expresly mentioned in the said Act, that His Majesty had signified His Royal Resolution, not to raise any more Cess, it cannot be expressed how great dissatisfaction and apprehension it would be∣get in the hearts of the people, if that unhappy way of Cess should be reviv'd, under what name or notion soever, now after His Majesties Restitution, and that the people had just reason to think themselves secur'd by the ancient Laws and Custom of the King∣dom, and His Majesties gracious Resolution so recently and solemn∣ly expressed by His Majesties late Commissioner in Parliament, and recorded in a Printed Act, being the 14 of His Majesties late Par∣liament, and first Session thereof.

7. The Western Shires, being only five, and the remnant Shires who plead for the good old Way, according to the ancient Laws of the Kingdom, being five times more, it is humbly repre∣sented, that the interest and number of so many other Shires should weigh down the pretences and desires of so few Shires, for a No∣vation contrary to the Law and Liberty of the Kingdom; it be∣ing also considered, that though the Loyalty of some Noblemen and Gentlemen within the said Western Shires, be above all excep∣tion, and be more eminent, that there are so few of sound Prin∣ciples there, yet to speak modestly, the generality of the Inhabi∣tants of these Shires has not been so forward to desire or promote His Majesties Restitution and Interest, that now after His Majesties happy Re-establishment, they should obtain what they could never effectuate in any time, and should be gratifi'd to the prejudice of other Shires of undoubted and constant Loyalty, and the overturning the ancient Law, and Way of the Kingdom.

8. As to the pretence of inequality in the old Way, it is to be considered, that though an Arithmetical proportion and exactness is not to be expected in any Way; Yet there is more reason to pre∣sume for the justice and equity of a legal way, venerable for an∣tiquity, warranted by express Laws and immemorial Custom, which for any thing known, had its beginning in the time of Free∣dom, and has been continued in the best, most peaceable and pure∣est times, notwithstanding any endeavours to the contrary, than for a way contriv'd and hatch'd in the Heart and fury of Trouble and Distempers, and brought forth and obtruded upon the Coun∣trey with so much partiality and factiousness, that it is well known that the Shires, and persons who were in opposition to His Maje∣sty,

had so great and prevalent interest for the time, that the va∣luations, both as to the Quota of Shires, and proportions and Rents of private persons were carry'd on by the instruments and Commis∣sioners, most inequally to the advantage of their party, and the e∣vident prejudice and pressure of whole Shires, and all per∣sons who were sincere, or had the least Affection for the Royal Interest.

9. By the Common and Feudal Law and Law of the Kingdom, where the Heir of the Vassal Dieth, not Entered, the Superiour during the None-entry, has right to the Duties of the Land holden of him, and when the Heir of Ward-lands doth Enter, the Superiour hath Right to the Duties for a year, under the notion of Relief, which in both these Cases of Relief and Non-entry, are payable accor∣ding to Retoures and the New Extent; if the old way of Retoures should be altered in relation to the payment of Taxations, why not in order to None-entries and Relief, so that they should be payed, not according to Retour but Valuations, there being no reason that the saids Casualities are not exacted in rigour: but the ancient Law and Custom for Retoures. How dangerous the prepa∣rative may be, if the way of Retoures should be altered, even to those who are for Novations, and what Combustion and Disorder it may occasion in the contrary, it is so apparent, that it needs not to be represented.

10. Whereas it is pretended that the Lords and others of the Clergy, will have prejudice by the Old Way, both as to their own proportion, and the proportion of the Vassals, and that they are in another condition than formerly, by reason that their Rents are impaired by Valuations and Ministers Stipends, it is humbly conceived with all tenderness and respect to the reverend Clergy, that whatever others for their own interest, do suggest under pre∣tence of theirs. The Lords of the Clergy and others, will not de∣cline to contribute, and be Taxt for His Majesties Service, as the other Estates, and as to the pretended way of paying Taxation according to the Valuations in these late times, they cannot be Taxed in that way, because the Rents of the Bishops being for the most part in these times of Usurpation, mortified to Universities and other pious uses, they were not valued, nor lyable to Cess and such like burdens; it must then follow, that either they must be Taxed in the old Way, or else not at all as to the proportion of the Clergie, it is designed by all the Laws concerning Taxations, and it is not higher than it was at any time, since Taxations were granted to His Majesties Predecessors; and it is to be observ'd in all Acts of Parliament concerning Taxations. The Lords of the Clergie do in the first place, before the rest of the Estates, make a chearful offer of the same proportion without any grudging, and though there needs no reason to be given for clear Law and Pra∣ctice; yet that the said proportion is Defin'd, and settled upon good Reason, it is obvious, seing the same is impos'd in order, both to their Spirituality, consisting in Tiths, and their Temporality

consisting in Lands and others; and it is known that the Tiths are more than the fourth part of the Rent of Scotland: and Tempo∣ralities and Church-lands will extend to a considerable part of Scot∣land, at least to a fourth part.

The Clergie having their Benefices and Living, not in Proper∣ty, as the other Estates, but of His Majesties immediat favour and grant, and for their lifetime; so that it is not strange, that upon the considerations foresaid they pay'd such a proportion of the Taxa∣tion; the case is not altered upon the account of Valuations and Ministers Stipends, that course for Valuation of Tiends, and aug∣mentation of Stipends being procured, and taken at the earnest desire of the Reverend Bishops and Clergy; so that it ought not to be represented, as being to their prejudice; and de facto, the Reverend Bishops and M••nisters, have no prejudice by that course, by reason the Bishops and Ministers, and Benefic'd persons (who ought only to be looked upon as Clergie) are secur'd by divers provisions contained in the Acts of Parliament anent the Valuati∣on of Tiths, and in special, that what they were in possession of actually and really the time of the Submission, made by them, should remain with them in quantitate & qualitate, unpr••judged by any Valuation, so that the Valuation and augmentation of Stipends being only in Relation to, and affecting the Spirituality and Tiends; the case neither is, nor can be altered as to the Clergie, they be∣ing secured by the saids Provisions, and the burden of augmentati∣on of Stipends, and prejudice by Valuations, doth only ly upon the Lords; and Titulars of Erection, and Tacks-men of Tiths, as the case is not altered in relation to Benefic'd persons; so Sti∣pendiary Ministers cannot be prejudg'd by the good old Way, seing by an Act of Parliament 162 Ja. 6 Par. 13. They are freed and exempted of all Taxations and Impositions, the burden of the pro∣portion of the Clergie doth not ly upon them, but for the most part upon the Vassals, and Tacks-men against which they have by the Law a present and summar way of Relief, as to the Lands and Temporality of the Clergie, they are the same, and in the same case as in time of former Taxations; and that the Vassals of Erection, or of Church-men, should be in better case than formerly, as to the payment of Taxation, It is contrary to Law and Reason, se∣ing res transit cum onere & causa; and that Lay-men acquir∣ing Lands from Church-men, should have more case of Taxa∣tion, as to such Lands, than other Church-men had, when they possessed the same, is inconsistent with Law, and with the Respect and Priviledges belonging to that Sacred Order.

11. Whereas it is pretended, that since His Majesties Restituti∣on, and the said Act of Parliament containing His Promise and Re∣solution, not to raise any more Cess: A Taxation hath been pay'd to the Lords of Session in the way of Cess, that pretence is of no weight, it being considered that the said Taxation is granted, not to His Majesty, but for an honorary allowance to the Lords of Session; and by an Act of the same Parliament, wherein His Ma∣jesty

Declar'd that no more Cess should be rais'd; so that the said Act being in the same Parliament, and it being an exception from the said Act, firmat regulam in non exceptis, and shuts the Door as to the future, upon that manner of Raising of Impositi∣ons.

12. Whatever a Parliament may do as to the repelling of for∣mer Laws and Customes, a Convention of Estates (though a meet∣ting most eminent) has not that Legislative Power: And albeit the Commissioners from Shires has power by their Commission, to offer and condescend to a Taxation; Yet they have not power to alter and take away the fundamental Laws and Customs of the King∣dom, as to the manner of uplifting of Taxations, being the Birth∣right of the people, and which cannot be taken away but by a Law made in Parliament.

King James the sixth, Parliament 16.

THe Earl of Gowrie having endeavoured Treasonably to Murder King James the sixth,* 1.319 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,* 1.320 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.

* 1.321THis Act is Explain'd in the 37 Act Par. 2 Ja. 6. and that is the Act related to in this Statute.

* 1.322BY 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.* 1.323

THis Act is formerly Explain'd in the 248 Act Par. 15 Ja. 6.* 1.324

THis Act Discharging Herring to be carried abroad before Mi∣chaelmas, under the pain of Confiscation,* 1.325 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,* 1.326 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,* 1.327 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.* 1.328

BY this Act it is Declared that the negligence of the Kings Offi∣cers, in Pursuing or Defending a Cause,* 1.329 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.

* 1.330THe 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,* 1.331 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.

* 1.332THis Act is Explain'd, crim. pract. tit. Heresie.

* 1.333THis Act is Explained, crim. pract. tit. Beggars and Vaga∣bonds.

THis Act is Explained, crim. pract. tit. Adultery.* 1.334

THis Act is but a Temporary Commission.* 1.335

THis Act against slaughter of Wild-fowl,* 1.336 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,* 1.337 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,* 1.338 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,* 1.339 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.

* 1.340BY 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.

* 1.341OF 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.

King JAMES the sixth, Parliament 17.

THere have been two Commissions granted for considering of an Union betwixt this Kingdom and England, one in this year 1604. and another in anno 1670. Betwixt which there are only these two differences; that in this Act the Names of the Commissioners are set down, and they had no other Commission but the Act of Parliament; but in the other Com∣mission 1670. the persons were nominated by his Majesty, under His Great Seal; the nomination being refer'd to the King by that Act of Parliament.

The second difference is, that in this Commission 1604. their power is limited with this provision, viz. not derogating any wayes from any Fundamental Laws, ancient Priviledges, Offices, Rights, Dignities, and Liberties of this Kingdom: but the other has no such exception; and yet it may be doubted, whether by vertue of the last Commission, those who were Commissionated, could have derogated by their Treaty, from any of our Funda∣mental Laws, ancient Priviledges, Offices and Dignities?

That the Parliament of Scotland could not consent to an Union of Parliaments, though all its Members were admitted, without at least Consulting the Shires and Burghs, which the respective Mem∣bers of Parliament represent, may be thus urg'd; all Nations con∣sidering the frailty of their Representatives, and that some ages and generations do too easily quite, what is fit and necessary for secu∣ring their Liberty; have therefore thought fit to declare some Fundamentals to be above the reach of their power; and that Parliaments cannot overturn Fundamentals, seems clear, not only, because these were not Fundamentals, if they could be over∣turn'd, that being the true difference betwixt Fundamental and other Laws; But if a Parliament should enslave their King∣dom to a Forraigner, the people might by a subsequent Electi∣on disown the Perfidie; or if two of three Estates should by plurality exclude the third, surely their Exclusion would be null; and that the Constitution of a Parliament is a Fundamental, ap∣pears not only from the Nature and Weight of that Priviledge; but likewise from this Commission, anno 1604. wherein it is call'd Fundamental, and looked upon as unalterable; nor is it imagi∣nable, how the Parliament cannot invert the Constitution of one Estate, and yet can invert and alter the Constitution of the whole: and by our Statutes it is Declared Treason, to endeavour to lessen the power of the three Estates of Parliament; and it cannot be said, that their power is not lessened, when they cannot make one Act or Statute by their own authority, or when others have more in∣terest in, and influence upon their Determinations, than they them∣selves have; and when, from being absolute, they become sub∣ject

to another; and a Parliament has but some such power over the people, as the Magistrats and Council have over a Burgh; for the Parliament is but the great Council of the people and King∣dom; and it is most certain, that the Magistrats and Council of a City or Town, could not consent to Incorporat with another Town, and consent to the eversion of their own, without the full consent of their people whom they Govern.

Commissioners for Shires and Burghs, are the same with us that procuratores universitatis are in the Civil Law; and Procurators eti∣am cum libera, could not alienat the Rights of their Constituents, without a special Mandat for that effect, l. procuratori ff. de procu∣rat. nor can they exchange nor transact upon what belongs to their Constituents (which is our case exactly) l. mandato generali ff. de procurat. and if we consider the Commission whereby they sit in Parliament, we will find it does only empower them to Repre∣sent in Parliament their Constituents in every thing, which shall be advantagious for them: From which Commissions I argue, first, That this is but mandatum generale; for it empowers them only in general Terms and bears no Warrand to Treat with England, of an Union of M••onarchies or Parliaments, & generali mandato etiam cum libera ea veniunt quae sunt de consuetudine, l. quod s••no l. §. qui assidua ff. de aedidit. edict. & non comprehendit ea quae sunt usui re∣gionis repugnantia; it empowers not such as have it to do things extraordinary, and which, it is probable, the Constituents would not allow, l. ut si filius ff. de donationibus, l. indebitum ff. decon∣dict indebit & cap. generali de reg. jur. in sexto; but in such cases, as Lawyers observe, and Reason Teaches, the Constituent is to be Consulted, and a special Mandat is required; as is clear by the Laws above-cited. Our Commissioners for Shires and Burghs, sit by vertue of Commissions, and as they need a Warrand to sit, so cannot they exceed it when they sit, and are not arbitrary; Nor could the Parliament of Scotland, as now Constituted, resign their Parliamentary power over to the Council; Nor does their Commis∣sion empower them to ordain, that there shall be no future Parlia∣ments; and when they exceed their Commissions, they are no more Members of Parliament, and therefore what they do, is null.

3. By these Commissions, the Commissioners for Shires and Burghs, are only empowered to Represent them in the Parliament of Scotland; which presupposeth that there must be a Parliament, and consequently that they cannot exstinguish, or innovat the Constitution of the Parliament of Scotland; for how can they Re∣present the Shires and Burghs in a Parliament, which is not; and certainly the Parliament of Scotland can be said to be no more, when they make but a part of the Parliament of Great-Britain; for Scotland cannot be called Britain, nor a part of a Parliament can∣not be called a Parliament, no more than the Commissioners for the North of Scotland, can be called the Parliament of Scotland; but how our Commissioners could sit in the Parliament of Great-Britain, by vertue of their former Commissions, I see not? and

therefore it seems to be both fit and just, that the Commissioners of Shires and Burrows should be sent home to their respective Con∣stituents, to crave their advice and consent, in so weighty and com∣prehensive an Affair, nam quod omnes tangit ab omnibus debet ap∣probari.

It may be likewise contended that this Great Determination of Uniting both Parliaments, requires at least the full assent of the Members of both Parliaments; and that though the Parliament had power to alter its own Fundamentals; yet if any one dissent, the Union of both Parliaments must stop; for both in Law and Reason, the power of making Laws, and the Right to retain or resign Priviledges, are two different things; the one is a Legislative Power, which is regulated by plurality of Voices; the other is founded upon Dominion or Property, and is not subject to Suf∣frage, no more than other Properties are; for as every Member has Right, so his Right cannot be taken away from him with∣out his own consent; though all these who are in the Society with him should renounce what is theirs, in re pari melior est conditio prohibentis, & in re communi nemo dominorum jure quicquam sacere potest invito altero L. Sabinus, ait 28. ff. com. divid. thus if the Mem∣bers of a Society were by Law free from Impositions, though all the Society, save one, should submit to pay, yet plurality would not in that case oblige the Refuser, and if all who had interest in a Commonty, should condescend to Resign their Right therein in favours of another, yet if one were refractory, that one would not be prejudged by the consent of all the remanent partners; whence it seems consequential, that as the Parliament cannot Debar any Member from sitting in Parliament, so that if one Member by advice from his Constituents, oppose the Union of Parliaments, it could not be carry'd by plurality; for what ever Reason militats why plurality should not oversway in the one, does likewise mili∣tat in the other; and if the right of every Member is given as the cause why, he cannot be debar'd from sitting; Why should not the same Right empower him much more to stop the total alterati∣on of the Parliament? even as a man cannot be Debar'd from using a Commonty. It will likewise operat, that the Commonty cannot be altered in its Nature, without his consent; and the Right of these who sit in Parliament, is as much prejudg'd, by extinguish∣ing the being of a Parliament, as by debarring them from sitting, or Voicing in it. Our Shires and Burghs have Right to be Re∣presented in no Parliament, save that of Scotland; and therefore if the Commissioners had power to overturn the being of the Par∣liament of Scotland, they could have debar'd our Shires and Burghs from being Re-presented in the Parliament of Great-Britain, seing they could pretend no Right to sit there; so that it seems, either plurality of Voices may exclude any particular Member, and may retrinch that Member: Or else by the same Reason, no plurality can establish an Vnion of both Parliaments; and if our Parliament could by plurality of Voices, overturn the Fundamentals, and de∣stroy

the very being of our Parliament; How shall it be possible to secure our Parliament, when it is joyn'd in with the Parliament of England, into one Parliament of Great-Britain, so as that the Parliament of Great-Britain, may not by the plurality of Voices, likewise overturn any Fundamentals that shall be condescended on; but that the Fundamental Constitution, and priviledges of Parli∣ament, are not subject to Suffrage, and cannot be abrogated, nor innovated, without the universal consent of all its Members and Commissioners, may be clear likewise from many Instances, for it is most certain that the Parliament, as now Constitute, could not by any Statute Ordain, that there should be no more Parliaments, or resign over their Parliamentary power in the hands of the Council; nor could they Transmit the Power they possess, in favours of their own Heirs, or exclude any of the Three Estates; and sure if Fundamentals be not subject to plurality of Voices; the power of Uniting of Parliaments, and suppressing of Monarchies is not, for these comprehend all other Priviledges and Fundamentals; and if the priviledges of one of the Three Estates cannot be altered by plurality; I see not how the priviledges of all the Three can be; and we have seen Parliaments in the last age do such irregular things, that the succeeding Parliaments have been forc'd, not on∣ly to abrogat their Laws, but even to find that they had exceeded their power, which implyes that it was not arbitrary.

King IAMES the sixth, Parl. 18.

* 1.342THis Act Declares His Majesties Royal Prerogative by way of acknowledgement, without any new Concession in these words, They all in a voluntar, humble, faithful, and unit∣ed heart, acknowledge His Majesties Soveraign Authority, Princely Power, Royal Prerogative, and priviledge of His Crown, o∣ver all Estates, Persons and Causes; and Confirms to His Maje∣sty His Imperial Power, and whatever Soveraign Authority any of His Predecessors had, and Casses annuls and abrogates all, any way done to the prejudice of His Authority any manner o•• way; so that it seems that all former Acts of Parliament, lessening any way the Royal Power, are hereby abrogated.

By this Act likewise, the Estates of Parliament promise to main∣tain, defend, and advance the Life, Honour, Soveraign Authority, Prerogative Royal, and priviledge of His Crown, with their Lives, Lands and Goods, to the outmost of their power: But because this Act was too general; therefore by the 2, 3, 4, and 5. Acts of the first Parliament, Charles the Second, His Majesties Royal Prero∣gatives in the choice of the Officers of State, Counsellours and Judges, in Calling and Dissolving of Parliaments, and making of Laws, in

making of Peace and War, and ordering the Militia, &c. are expresly acknowledged and Ratified: and by the second Act of the second Session, of the first Parliament, All endeavours to restrain His Royal Person, to Depose or Suspend Him, and all endeavours tending thereto, are Declared Treasonable; and all stirring up of the People, to the hatred or dis••ike of His Royal Prerogative, are punish∣able in manner therein mentioned: and by the 27 Act of the 3 Sess. of the 1 Par. Ch. 2. His Majesty is Declared by His Prero∣gative Royal, To have the only Power of Ordering all Trade with Forraigners.

Nota, This is the first Act that mentions the word Preroga∣tive, which was formerly call'd the Priviledge of the Crown; and therefore this Act mentions both the Old and the New Words, by asserting His Majesties Prerogative, and Priviledge of the Crown.

BY this Act Bishops are not so much restored to their Offices,* 1.343 as it is Declar'd that it was never mean'd by His Majesty, that the Estate of Bishops was to be suppressed: Their sitting in Par∣liament, being by this Act Declar'd, to be one of the Fundamen∣tals of the Nation: But by this Act, their Benefices are only Re∣stored to them, which were much impaired: And though by the 114 Act, Par. 12 Ja. 6. General and Synodal Assemblies, and Presbytries, are thereby Ratifi'd; yet Episcopacy is not thereby abrogated expresly.

By this Act, the King is Declar'd to be Soveraign Monarch, ab∣solute Prince, Judge, and Governour, over all Persons, Estates, and Causes, both Spiritual and Temporal, within this Realm: And by the 1 Act, Par. 2 Ch. 2. It is asserted and Declared, That His Majesty hath the Supream Authority, and Supremacy over all Persons and in all Causes Ecclesiastical within this His Kingdom, and that by vertue thereof, the Ordering and Disposal of the External Govern∣ment and Policy of the Church, doth properly belong to His Majesty, and His Successors, as an inherent Right to the Crown: and that His Majesty and His Successors, may Settle, Enact, and Emit such Constitutions, Acts, and Orders, concerning the Administration of the external Government of the Church, and the persons employed in the same, and concerning all Ecclesiastical Meetings therein, as they in their Royal Wisdom shall think fit.

There having been great Debates about the wording this part of the Act; some Members of Parliament, pressing to have it without any Restriction, and others, though very Loy∣al, pressing it might be Restricted to the Calling and Dissol∣ving of Ecclesiastick Meetings, and External Government only: Lightoun Bishop of Dumblane, was at last trusted by the Commis∣sioner, who has drawn it very Cautiously for the Church; though our blinded Fanaticks think otherwise; For, First, It is Founded upon the former Old Statute; and after repeating that Statute, it

is said, It is therefore Enacted, to shew that it was not Design'd, that this Act should exceed the former and old Supremacy.

2. The Prerogative is restricted to Government; and not only so, but to the External Government; and even as to this External Go∣vernment, the King has only the Ordering, and D••sposal of it; and the Administration of it by the next Clause; so that the Do∣ctrine of the Church, nor the internal part of the Government falls not at all under the Kings power, by vertue of his Supremacy; that is to say, He can neither Admit, nor Depose, nor Administrat Sacraments; though He may Discharge a Bishop or Minister to Preach; and this is that which was allow'd by the Primitive Church to their Emperours: Thus Constantine, that Great and first Christian Emperour, is approv'd by all the Fathers, for set∣ling thus the Marches, betwixt the Ecclesiastick and Civil Juris∣diction, Euseb. lib. 4. de vit. Constant. vos quidem 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; eorum quae intus in ecclesia sunt agenda ego vero 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 eorum quae extra sunt episcopus sum a Deo constitutus; and that the Administration of the Sacraments, and these other things quae in∣tus sunt, belong not to the Civil Magistrat, is acknowledg'd by the 69 Act Par. 6 Ja. 6. Wherein it is acknowledg'd, that the Juris∣diction of the Kirk consists in the Preaching of the Word, the Cor∣rection of Manners, and the Administration of the Sacraments: In which Act, three things are observable; 1. That the Act tells they derive their Jurisdiction from the King, which is as to the exter∣nal part; for no man can think they Derive their power of Ad∣ministrating the Sacraments from the King; though from Him they Derive the Faculty of having the External Face of a Church, without which, that could not be enjoy'd.

2. Though the Church has the Correction of Manners, yet the King may regulat these, as we see in the very next Act, for keep∣ing the Sabbath; and which seems to have been made the next Act to this, for to clear the meaning of that part of this Act.

3. Though the Preaching of the Word is Declar'd to be a part of the Ecclesiastick Jurisdiction; yet that relates only to the Mat∣ters of Faith, to be Preach'd; as to which, Ministers are to be judg'd by Church Judicatures; but if they Preach what encroach∣es on the Secular power, they are to be judg'd by the King, and those Deriving Power from Him, conform to the 129 Act Par. 8 Ja. 6.

This Supremacy in cases Ecclesiastick seems to have been ever the proper Right of Secular Princes; and Haedeus the Great Canonist. repet. in cap. novit. de jud. num 145. Though a Roman Catholick does acknowledge, That nemini dubium est quin▪ in primitiva Ecclesia de rebus & personis ecclesiasticis jus dixerint; which will very clearly appear to any who will Read the first thirteen Titles, of the first Book of Justinians Codex; in which he ordains amongst other things, vim legum obtinere Ecclesiasticos canones a quatuor synodis Nicena Con∣stantinopolitana prima Ephesina prima & Chalcedonensi expositos &

confirmatos; and I find that the Supremacy is in England thus E∣stablished, under the Reign of Henry the eighth, That the King and His Heirs and Successors, should be taken and accepted as the only Supream Head on Earth, of the Church of England, and should have and enjoy, annexed to the Imperial Crown of that Realm, as well the Title and Stile thereof, as all Honours, Dignities, Preheminen∣cies, Jurisdictions, &c. to the said Dignity of Supream Head belong∣ing.

In this Act the Bishops are not restored to Benefices, that are not of Cure, but to these which have a particular Cure; and therefore His Majesty Confirms all Dispositions, or other Rights made of Abbacies, Priories, or other Benefices, not being Bishop∣ricks made or Confi••med at, or before July 1587. they paying the Greslum appointed by that Act, to the Bishop within Year and Day.

There is likewise reserved by this Act, all Feus lawfully set and Confirmed before the Act of Annexation, which was in the year foresaid; and all Patronages of Kirks (pertaining formerly to them) Disponed by the lawful Titular; and the Kings Majesty, and Ratifi'd in Parliament, which extends, as well to the Patro∣nages of Mensal Kirks, as of Kirks which are of the Bishops presen∣tation, March 25. 1631. and albeit regulariter confirmatio nihil no∣vi juris tribuit; yet hoc casu supplet omnes alios desectus; for by the former Practique it is found, that alienations of Patronages, even of Mensal Kirks, are valide, if made as said is, by the law∣ful Titular; though not made by him, with the consent of the most part of the Chapter; for this Act requires that it be made by the lawful Titular, but there is no mention therein of the consent of the Chapter.

By the Act of Annexation in anno 1587. the whole Superiorities of all Kirk-lands being annexed to the Crown, it was therefore necessary that by this Act, they should have been Restored, but they are not Restored expresly to these; but it is alleadged that they have Right to them by the 14 Act Par. 1 Ch. 1. But yet in that Act it is only said, that what is Statute anent the Kings being Superior to Vassals of Erections, shall be but prejudice to Bishops and their Chapters, of their Rights to their Superiorities, which is only a Reservation, but is no express Restitution of them to these Superiorities.

THis Act anent the Dilapidation of Bishopricks,* 1.344 is formerly Explained in the general nature of Dilapidations, in the Act 101 Par. 7 Ja. 6. and Act 11 Par. 10 Ja. 6. and as to what con∣cerns Chapters, it shall be Explained in the Act 2 Parliament 22 Ja. 6.

* 1.345WHen a person is Forefaulted, he may be in Law Restor∣ed two wayes, viz. either by way of Justice, when the Sentence of Forefaulture is found to be unjust: or by way of Grace, when the Sentence is just; but the person Forefaulted, or his posterity is restored; which distinction we have from the Civil Law, that allows a distinction, inter restitutionem per modum justitiae & per modum gratiae.

The difference betwixt these Restitutions by this Act of Parlia∣ment, is, that the person that is restored by way of Grace, has not by his Restitution, Right to any part of the Forefaulted Lands, and others Disponed in favours of third parties: but such as are Restored by way of Justice, will thereby have Right to their own Lands, though Dispon'd to third parties, for onerous Causes, as was found in the Disposition of the Lands of Mugdock, formerly belonging to the Marquess of Montrose, and Disponed by the Par∣liament for onerous Causes to Argile: as also, these who are re∣stored by way of Justice, will have Right even to repeat the sums of Money, which formerly belonged to them, though assigned to third parties for onerous Causes: and albeit those sums were first ordained to be pay'd in to the Thesaurie, and precepts only drawn upon the Thesaurie, in favours of these third parties, as was found in the Earl of Branfords case against the Earl of Callen∣der and others; though this Restitution of Money seems much har∣der than that of Lands, since Money is res sungibilis: and sin∣gular Successors are not oblig'd to know to whom the same belong∣ed.

A Process having also been intented against the Earl of Argile in the Parliament 1681. for reducing his Heretable Offices, as granted since the 44 Act Par. 11 Ja. 2. It was answered, that these Heretable Offices were Dispon'd to the Family before that Act; and it being Reply'd, that the first Right was extinguished by the Forefaulture, and the Restitution being only by way of Grace, was to take effect only from the date; nor was it more suffici∣ent against the King, than if the King had granted them origi∣nally at that time; in which case they would have been quarrallable on that Act; and yet de praxi, the King restores to Titles of Ho∣nour, as of the first date. By the 2 Act Par. 9. Ja. 6. The King succeeding to Lands by Forefaulture, has right to whatever the Forefaulted person was five years in possession of before the Forefaulture, because it is presumed, that the Forefaulted per∣son will abstract the Evidents; and therefore upon the same pre∣sumption, it is likewise appointed by this Act, that the producti∣on of Extracts out of the Register, shall satisfie the production in Improbations against the King in Forefaulted Lands; Whereas other singular Successors Rights will be improven, if the Originals be not produced, vide notata upon the said Act 2. The excellent Narrative of this Act is Copied out of l. 1. §. 1. ff. de justitia & jure.

THis Act is Explained in the 11 Act Par. 16 Ja. 6. Which is that Act that is here Rescinded,* 1.346 though it be not here cited.

BY this Act it is appointed,* 1.347 that where there is no arrable Ground in the Paroch, the Minister shall have sixteen Soums Grass in place of the four Aikers, which are allow'd to him for his Gleib: and by the 21 Act Par. 1 Sess. 3 Ch. 2. It is ordain'd, That the Mi∣nister shall have Grass for one Horse and two Kine, over and above his Gleib; and therefore it was doubted, if where the former Gleib did extend to more than would be Grass for two Kine and an Horse, above the four Aikers, the Ministers might seek that Grass, and the Lords found they might; albeit it seems that if this were just, the Minister might also seek Grass for a Horse, and two Kine, even where he had sixteen soums Grass, by this Act, February 16. 1675. Parochioners of Banchry contra their Minister.

THis Act is but Temporary.* 1.348

THis Act appointing Letters of Horning to pass upon Sheriff,* 1.349 Stewart, and Baillies Decreet, without a Decreet conform, before the Lords, is Explain'd in the 177 Act. Par. 13 Ja. 6. and because these Acts gave only warrand for Raising Letters of Horn∣ing upon such Decreets; Therefore warrand is likewise given for raising Letters of poynding upon all such Decreets, by the 29 Act Par. 1 Ch. 2. which shews that express Acts are us'd even where there is paritas rationis; and they are useful, ob majorem evidentiam.

BY this Act all persons are Discharg'd from receiving any Col∣ziars,* 1.350 Salters, or Coal-bearers, without sufficient Testimoni∣als from their Masters; but though this Act appoints the Coalʒi∣ars, Coal-bearers, and Salters, to be punished as Thieves; yet none ever Died upon this Act: but the ordinary Action, both against them and their Resetters, is before the Privy Council; and the Act only says, They shall be repute as Thieves, and punished in their bodies. This Act is extended to Drawers of Water in Coal-heughs: and the Fees of Coalʒiars are Discharged to exceed twenty Merks by the 56 Act 1 Sess. Par. 1 Ch. 2. though this Act only Discharges all persons within the Kingdom to hire other mens Coalʒiars, &c. yet it was justly thought, that the prohibition of it extended to all such as had Right to Coal or Salt here by Tack or otherwise, though themselves dwell not within the Kingdom, and it seems that the Council might hinder Forraigners to carry a∣way our Coalʒiars, and Salters, though they cannot punish them for so doing.

By this Act likewise, a Power and Commission is given to all Masters and Owners of Coal-heughs and Panns, to apprehend all Vagabonds and sturdie Beggars, and put them to Labour; and it has been resolved, that Tacks-men of Coal-heughs and Pans, has the same priviledge, though they cannot properly be call'd Ma∣sters and Owners, except the words be allow'd to be extended to Temporary Rights: but since this priviledge is chiefly real, and not personal, & in rem scriptum; therefore it seem•• reasonable, that whoever have the power of the Coal-heughs, should like∣wise have this priviledge, which is granted upon their ac∣count.

The Council thought argumento hujus legis, that Masters of one Manufactory, could not have Action against others of the same Manufactory, for resetting their Servant, who had run away from them, and to whom they had learn'd their Trade: and yet I have seen action granted in the Council against Heretors, who had entized away other mens Fishers, and the parity of Reason seems to reach to such as work in Lead-mines. This condition of Coalʒiars and Salters by our Law, makes them to be like to the addicti glebae & adscriptitii, mentioned in the Common Law.

* 1.351THis Act is Explain'd formerly in the 72 Act Par. 14 Ja. 2.

* 1.352BY this Act men are Discharg'd to lay Lint in their own Lochs, since thereby Fish is destroy'd, and the Water becomes Noxi∣ous to Neighbours; and thus property is in many things restrict∣ed, for the good of the Common-wealth; there being nothing more consequential to property than that, quilibet potest jure suo uti modo principaliter hoc non faciat in aemulationem alterius: But it seems that only the Parliament can restrain this exercise of pro∣perty, else this Act had been needless: and therefore when the Laird of Haining offered to Drain his own Loch; it was justly Debated, whether the Fishers upon Tweed could hinder him, be∣cause the Water that run in from the Loch to Tweed, prejudged their Fishings: But that which made the case there more Debate∣able, was, that publick Rivers and Salmond Fishings, are of their own Nature priviledg'd. It may be likewise Debated, whether paritas rationis should extend this Act, against such as lay stinking Hides, or other such noysom things in their Loches or Burns; and the laying any such things in the Loch of Lochlevin, is specially Declar'd punishable by the 29 Act Par. 1 Ch. 1. Vide quaestiones medico legales Pauli Zacchej, lib. 3. Tit. 3. where he condemns what is here Discharg'd as noxious, both to Man and Beast.

* 1.353BY this Act the Vassals who hold Blench of His Majesty, are only lyable in their Blench-duties, if they be required allaner∣ly; and these Blench-duties cannot be converted into Money by the Exchequer.

Observ. 1. It is declared by this Act that Blench-duties are not to be any Burden, or yearly Duty, by their own Nature, but only an acknowledgement, or recognizance, if they be requir'd allanerly: and yet by our Law, in Lands holding blench of a Subject, we thus distinguish, viz. either the Charter bears, si petatur tantum, and then the Blench-duty cannot be required be∣yond the year, in which it was due: Or else the Blench-Char∣ter bears not this Clause; and then either the Blench duties are such as are of a yearly growth, as Wax, Pepper, &c. and these can only be crav'd within the year: Or else they are things of some intrinsick value, and not of an annual growth; such as Sil∣ver, Spurs, &c. and they may be pursued for at any time with∣in fourty years: Nor can any annual Prestations, such as Car∣riages, be acclaimed, after elapsing of the respective years, where∣in they were due by the Tack, or otherwayes, January penult 1624. But though a Vassals Charter, who holds of the King, bear, si petatur tantum; Yet the Exchequer by an Act, does Tax the price, and pursue for these, and for annual growths, al∣beit they have not been crav'd within the year, for which I can give no other reason, but that the negligence of the Kings Offi∣cers cannot prejudge the King: But how can the Act of Exche∣quer alter the Nature of the holding, which is an express Con∣tract betwixt the King and His Vassals; and it may be alleadg∣ed, that by Act of Exchequer, it may be as well Declar'd that prescription shall not run against the King, for this is a species of prescription; but especially since it is Declar'd by this Act, that they shall not pay, notwithstanding of any Act of Exchequer past, or to come: nor does the Act anent the negligence of the Kings Officers, abrogat this Act, as it ought to have done. The Ad∣vocats Protestation in the end of this Act seems to be in-intelligible; for how can Blench-duties be conform to the Kings Estate and Dignity: Some Interpret this Act, as if it only prohibited the Conversion of the Blench-duty into Money, in the body of the Charter; but does not hinder the Exchequers valuing of it: O∣thers to reconcile the present practice with this Act, make a distin∣ction betwixt holdings in blanco, and in alba firma; as if the first being an inconsiderable Duty, as a Rose, or a Penny, may not be converted to Money; but the other affording some profit, such as Gilt-spurs, Gloves, a pound of Pepper, &c. may be valued by the Exchequer.

This Act quadrats with Tit. 2. lib. 11. Cod. Theodos.

THis Act is formerly Explain'd in the 77 Act Par. 6. Ja. 5.* 1.354

BY this Act, all such as Convocat▪* 1.355 or Assemble themselves within Burgh, without Licence of the Provost and Baillies, are declar'd to be guilty of Faction and Sedition; and it has been doubted, whether Keepers of Conventicles within Burgh may

be punishable by this Act; for though there be a specifick punish∣ment appointed for Conventicles; yet since this and o••her Laws, by which Conventicles may be punished, in specifick and particu∣lar cases, are not abrogated expresly: It is therefore alleadged that they are not abrogated, conform to the general Rule set down in the 243 Act Par. 15. Ja. 6.

Observ. 2. It may be doubted whether, since this Act runs in the general against Convocations within Burgh, if this Act should not as well extend to Burghs of Barony, and Burghs of Regality, as to Burghs Royal, since the word Burgh comprehends all; and the Reason inductive of this Act, viz. the quenching Convocations extends likewise to all; and when the Parliament designed to extend their Acts only to Burghs Royal, they were particularly exprest, as is to be seen in the immediat foregoing Act: and albeit it may be urg'd, that this Act speaks of Provost and Baillies, yet this must be Interpreted applicando singula singulis; for there are many Burghs Royal, as well as Burghs of Regality and Barony, that want Provosts.

Observ. 3. That though this Act ordains only such as obey not their Magistrates and Officers, to be fined; yet if the Inhabitants of any Town refuse to obey any Officers in the Kings Name, such as Captains, &c. they may be fined.

Observ. 4. This Act appoints that it shall be proclaim'd at all the Mercat Crosses of the saids Burghs; albeit by the 128 Act Par. 7 Ja. 6. all Acts of Parliament are only to be published at the Mer∣cat Cross of Edinburgh; but this Act being posterior, and speci∣al, derogats from that general Law; and this was specially appoint∣ed, because of the special interest of the Burrows.

Observ. 5. It is observable that this Act proposes no punishment for Towns, where the Magistrats do not their duty to oppose Tu∣mults against the Government; yet the Town of Lanerk was fin'd for not pursuing those who burnt the Test at their Cross, anno 1681. and privat Burgesses pay a proportion of such fines, though they were not required by their Magistrates, because it is their duty to concur when they see such Tumults; and Magistrats are oftimes unable to require concurrence.

* 1.356THe Lands of Huntingtoun and Strabrand are dissolved to be set in Blench Farm, in favours of the Earl of Montrose; and it was necessary that there should be a particular Warrand for setting the Lands in Blench-farms; because by the 234 Act Par. 15. Ja. 6. The annext property can only be dissolved, for setting Lands in Feu-farm, vid. observ. on that Act.

It is likewise observable by this Act, that because this Dissolution was to be made in favours of the Earl of Montrose, then Commissio∣ner. It is mentioned that there is a particular Warrand for dissolving the same.

King James the sixth, Parliament 19.

THis Act against Sayers and wilful Hearers of Mass, is Ex∣plain'd, crim. pract. tit. Heresie.* 1.357

Nota, By this Act the Resetters of such are fineable, as Non-communicants; and the Act by which these are fined, is not here cited, but it is the 17 Act Par. 16 Ja. 6.

THis Act against the users of false Weights and Measures, whose whole Goods are to be Confiscated; is Explain'd,* 1.358 crim. pract. tit. Falshood.

THis Act is Explain'd, crim. pract. tit. Theft.* 1.359

THis Act empowers the Bishop of Saint-andrews to choose se∣ven within his Diocie, to be his constant Chapter;* 1.360 which was formerly resolved upon by the 3 Act Par. 18 Ja. 6. Though the power of choosing them was not given to that Bishop expres∣ly: But thereafter by the 2 Act Par. 22 Ja. 6. The Benefices whose Incumbents are to make up that Chapter, are particularly conde∣scended on in that Act.

King JAMES sixth, Parliament 20.

SUch as sent Pedagogues abroad with their Children, without a Testificat from the Bishop of the Diocie,* 1.361 where the Pe∣dagogue lately made his Residence, are fineable by this Act; and though this Act is thought only to strick against Chil∣dren of Popish Parents; Yet it is general, and stricks against all His Majesties Subjects, of what Religion or Opinion soever; and though they use to call these Governours, and not Pedagogues: yet that will not defend against this Act, for Pedagogue was the only Term then in use.

THis Act stricks only against the Children of Popish Parents,* 1.362 who are hereby ordain'd to find Caution to the Lords of Privy Council, that they shall not intertain their Chil∣dren abroad, when they know them to be Popishly inclined; and by vertue of this Act, the Lord Semple and others, were oblig'd in anno 1667. to recal their Children out of Doway; and this Act was renewed by Proclamation of Council, January 1679.

BY this Act it is Ordain'd that such as are Excommunicated, for not professing the true Religion,* 1.363 shall neither directly, nor indirectly possess their Estates; and by vertue of this Act, it was found upon the 16 of June 1629. That those Excommunicated persons, are not so much as bona fide possessores; but that by ver∣tue of this Act, they are oblig'd to refound all their own bygone Rents, possessed by them before Citation or Sentence, they only getting Defalcation of Seed, T••ends, and Servants Fees: Which are ordinarly defalked in the Computation of Multures, and all other intromissions.

* 1.364IN time of Popery, every Bishop had his own Official, or Com∣missar; but in the year 1563. Queen Mary by a Signature, Su∣perscrived with her own Hand, did institute this Court at Edin∣burgh, appointing four Commissars to sit there, and to judge in Divorces, and to Reduce the Decreets of Inferiour Commissars, which is Ratified in Parliament. 1567. by which also they are ap∣pointed to Judge in all Actions concerning Benefices gran∣ted by the Queen. They were at first nominated by the Queen, and were called, Judices Reg••i; but after Her Demission, they were nominated by the Lords of Session, as is clear by the Books of Sederunt: and even in this Act, the present Commissars were to continue, they getting Testimonials of their sufficiency from the Lords of the Session, and severals of them were at once Lords of the Session and Commissars, as appears by the Books of Sederunt; upon the Restitution of Bishops, the Commissars who then were, did submit; and this Act seems to have proceeded upon a Submission betwixt the Bishops and Com∣missars, the 23 of June, the day before the Parliament sat down, whereupon Decreet was pronounced the 29 of June, containing the foresaid Reservation of the Commissars Offices, and in the case of the new Provisions, the Commissars are the only submit∣ters; and yet there are Annuities Decerned to the Clerk, to the for∣mer of Testaments, Quot-masters and others; and there is a form prescrived anent the procedure in Divorcements, betwixt the par∣ties in other Commissariots, who are not worth a certain sum, which hath no foundation in the Act, nor seems to be second∣ed by practice; the Decreet is Registrated, January 19. 1610. Re∣lative to the Decreet, wherein the Arch-bishops and Bishops of Gal∣loway and Orknay are subscrivers for themselves, and taking bur∣den for the remnant Bishops, and their Successors, there is a Con∣tract the 15 of November 1609. and March 5. 1610. entered into amongst the Bishops▪ for the relief of the Arch-bishops, or either of them, for payment of their respective proportions to the Arch-bishop, who shall happen to be distressed for the Sallary, the Arch-bishops by the Contract, being bound conjunctly and seve∣rally to the Commissars, the whole proportion of Relief due by Glasgow to Saint-andrews, is the double of the Contribution

to the Lords, and Sallary due to the two youngest Commissars, and the Relief due by Saint-Andrews to Glasgow, is the double of his Contribution, and the Sallary due by him to the two eldest Commissars: By which it appears, that before this Decreet, the Commissars had Sallaries; the obligement in favours of the Mem∣bers of Court, of the Commissariot of Edinburgh, whereby the Bishops are obliged to compel the Members of their Court, to pay certain Sums to the Members of the Court of Edinburgh, during their lifetime, is not renewed in the Contract: In this Contract the obligements upon the part of the Commissars; are general, re∣lative to their Duty to their Superiours, and fidelity in admini∣stration of Justice, according to the Practique and Injunctions, the Observation of the Decreet Arbitral, and Articles, by which it is ruled, subscriv'd by Arbiters and Overs-men, which is not ex∣tant; there is no penalty adjected, neither are the Commissars sub∣scriving.

The Commissars and many of the Bishops being dead, who were alive the time of the Decreet Arbitral, the Bishops especially; the succeeding Bishops refused to pay the Sallary to the succeeding Com∣missars; whereupon they pursued John, then Arch-bishop of Saint Andrews, who▪ the time of the Decreet and Contract, was Arch-bishop of Glasgow, and James Arch-bishop of Glasgow, who then was Bishop of Orknay, as the only two alive, who were burden-takers by the Submission for the rest, and Decreet followed, Fe∣bruary 12. 1630. against the Arch-bishop of Saint-andrews, who, the time of the Contract, was Arch-bishop of Glasgow, and was bound conjunctly and severally with Saint-Andrews; The Arch-bishop for his Relief upon the Contract, being Distressed upon the Decreet, pursued Adam Bishop of Dumblain, who was created Bishop since the Contract, and thereupon defended himself, as free of the Obligement of Relief: as likewise, that the Sallary was not due to the then Commissars, it being due to their Prede∣cessors, the Submitters allanerly, which was repell'd, and the Bi∣shop Decerned, February 18. eodem. In respect the Charge and Pains was perpetual upon the Commissars part, and the benefite perpetual to the Bishops, and they having the Confirmation of the great Testaments; and the word allanerly was found only to exclude the Heirs of the then Commissars, but not their Successors in Office; the point being clear'd as said is, the Commissars thought it more just that every Bishop should be ly∣able for his own part; and therefore all the Bishops are pursu∣ed, wherein the same Defences are again repell'd, and they De∣cerned, March 27. eodem: and the 24. of July 1634. there is a new Decreet obtained in favours of the Commissars and their Suc∣cessors against the Bishops and their Successors, containing a De∣clarator, that it was a constant Fee, payable in all time coming, this was in absence; the Decreet against Saint-Andrews, dated the 12 of February 1630. is not extant, unless in the Register; but it is Narrated, and Founded upon in the Decreet, at the Instance of Saint-Andrews against Dumblain; upon the Decreet in March

against the Bishops, there are Letters rais'd, dated the last of March, Givand warrand to Charge the Bishops, to pay their proportion of the Sallary, and to find Burgesses of Edinburgh Cautioners, within fifteen dayes; That in all time coming, they shall pay their proportions, conform to a Deliverance of the Lords, shown to them, founded upon the damnage that the Commissars would sustain in evacuat∣ing their Sallaries, by Charging and Denuncing the Bishops year∣ly, in the several remotest corners of the Kingdom; the Delive∣rance is not extant. There are other Letters directed against them the first of April 1630. for payment only; so that both the Re∣medies are used: There are likewise Letters directed for find∣ing a sufficient Burges Cautioner, Dated the sixteenth of Febru∣ary 1637.

The ninth of July 1661. There is an Ratification in Parliament, in favours of the Commissars, declaring the Rent, Patrimony, and Estates of the Bishops to be lyable to them for their Sallaries; and there is a Reservation in favours of the Commissars; in the Restitution of the Bishops, there is a Decreet against the Represen∣tatives of Arch-bishop Fairfowl, wherein the whole Defences a∣gainst the Commissars Right are repell'd: but by the said Decreet, the disparity betwixt the Provision of a Sallary, in favours of the Commissars, and in favours of the other Members of Court, by the Decreet Arbitral, is not sufficiently clear'd; for the Decreet, as to the Members of Court, was null, it being beyond the Terms of the Submission, which was only in favours of the Commissars: and as to the Members of Court, the Decreet infers no special di∣rect Obligement upon the Bishops; but only that they are oblig'd to compel their Members of Court to pay these certain sums to the Members of Edinburgh, without any penalty, and which hath ne∣ver taken effect by the Decreet, or Contract, the Commissars had no action against the whole Bishops, but only against the whole burden takers, and the Arch-bishop: but by the subsequent De∣creets, and Acts of Parliament, the whole Bishops, and the Intro∣metters with their Rents, are directly lyable unto them, and so their Executors intrometting with the Ann, or the subsequent Bishops are lyable; and that is but prejudice of the obligement in solidum, a∣gainst the Arch-bishop, contain'd in the Contract; by vertue whereof, Saint-andrews was Decern'd, and by vertue of a Submission, betwixt Saint-andrews and Edinburgh; Edinburgh is Decerned to relieve Saint-andrews in the half; and Saint-andrews hath Ratifi'd to him in Parliament, the nomination of the whole Commissars, against which, Edinburgh did protest. It doth not appear how Glasgow los'd his Right to the nomination of two established to him by the Act of Parliament. There was an Act for regulation of the Commissariots, which took no effect; neither is there any thing done by the Lords, by vertue of the Act of Parliament 1661. as to the Regu∣lation of the Commissariot of Edinburgh, or setling a course for the pun∣ctual and secure payment of the Commissars Sallary; the whole Instru∣ctions above-mentioned, related to, are to be found with the Com∣missars of Edinburgh.

It is observable by this Act, That the Commissars of Edinburgh have a twofold power; an Diocesian, whereby they Confirm the Testaments within the Diocy of Edinburgh, and exerce all power that is competent to other Commissars: and another universal and transcendent, whereby they may Reduce the Decreets of all the other Commissars in Scotland: and this Act founds them so abso∣lutely in this Jurisdiction▪ that it is exclusive of the Lords of the Sessions power so far, that the Lords cannot Reduce in prima in∣stantia, a Decreet past by any inferiour Commissar; and the Lords themselves did so dec••de, after full Debate, Dury July 23 1624. Though it was there alleadged, that the Parliament could not diminish the power of the Session, without calling them thereto; and yet now the Lords does ordinarly Reduce in prima instantia, the Decreets of the inferiour Commissars; which proceeds rather from the in∣advertancy of the Advocats, who are careless to Plead it, to with∣draw Actions from the J••dicature whereof they are Members, than that the Lords do concern themselves to claim it; but both then and now, the Lords may Reduce the Decreets of the Commissars of Edin∣burgh, if they dec••de not rightly in th••se Reductions.

In this Act also, Bishops are empower'd to Creat Clerks, and Procurator-fiscals; and though in the Commission, which the Bi∣shops give to Commissars, they give them power to admit Procu∣rators; yet cannot the Commissars by that power, Creat Procura∣tor-fiscals, but only ordinary Procurators; the Fiscal remaining still at the Bishops nomination, July 12. 1627.

The Commissars Books bear sedebant, where the Lords Books bear Sederunt.

KING James finding that the Nobility did ordinarly get their Children, Friends,* 1.365 or Servants to be Elected Magistrates of Burghs, whereby they carry'd all Nominations in Parliament at their pleasure; Did therefore in this Act, which is intituled, Act for the Apparel of Judges, Magistrates, and Kirk-men, Ordain, That no man should in time coming be capable of Provestrie, or other Ma∣gistracie, but Merchants and actual Traffiquers, and Habiters within the said Burgh allanerly, and no others: By vertue of which Act, Chancellour Seaton was oblig'd to demit his Provestry of Edin∣burgh: and this Act is renew'd by Proclamation in anno 1626. How soon King Charles came to the Crown. Some think, that though Noblemen cannot be Elected since this Act; yet the Privy Council may name them: and some think that this Act is in De∣suetude: but I believe neither; for where the Council names jure d••voluto, because Magistrates accept not, they come only in place of the old Magistrates and Council; and therefore they can only do what these could have done, ex regula surro∣gatorum; and this Act having been made in favours of the King and Monarchy, it cannot run in Desuetude, without their consent; and it is thought▪ that by vertue of it, none who are Lords of the Session can be Provosts, these being incompatible Employments, and inconsistent with the design of this Act, which bears to be made to hinder the dissipation of their Common Good, and perverting

of their Priviledges, which is much more easie for Lords of the Ses∣sion, and persons in publck Employment, than for others; beside, that publick Traffique and Merchandising, is inconsistent with that exact distribution of Justice, which is necessary in His Majesties Judges, vide Lampridium in vita Severi, as to the distinction of Habits amongst Magistrates.

* 1.366THis Act is Explain'd, crim. pract. tit. Injuries. To which I shall only now add, that not only what is destructive to the Government, but what may tend to the prejudice of the Govern∣ment, is here punished: and this I have thought fit to observe; because tending has been oftimes Debated not to be Relevant. It may be also doubted, whether speaking against the House of Com∣mons, or their Resolutions, is punishable by this Act, since it pu∣nishes all reproachful Speeches of the People, or Countrey of Eng∣land; and they are the Representatives of the People; and since these are punishable who speak against a Councellour of England, much more ought they to be punish'd who speak against the House of Commons. But in my opinion, this Act reaches only such as speak reproachfully of their Nation, Countrey, and Counsellours; but the whole Act ought to be abrogated by our Parliament, as being past by us, in expectation that England would make such an Act in their Parliament, which they never did; and upon which account it was never in observance with us. It is likewise observ∣able, that though in our Law, Concealing and not Revealing, is only punishable in Treason; yet by this Statute, the hearing any thing spoke against the people of England, or any Privy Counsel∣lour in that Nation, and the not Revealing, is declared to be equal∣ly punishable, with inventing such Calumnies.

THis Act is Temporary as to many things; but it is observable from it,* 1.367 that the using false Testimonials, is punishable by death, as Falshood. And the power given to the Commissioners of the Borders, to apprehend Fugitives, and to send them, or their marks and tokens to the Kings Commissioner, is founded on l 4. ff. de Fugitivis; Where Limenarcha, which is our Commissio∣ners of the Borders, debent inquirere in fugitivos; and to send them with their notae (which is our Tokens) to the next Magi∣strats.

THe Customs being annex'd to the Crown, by the 8 Act Par. 1 Ja. 1.* 1.368 They are by this Act dissolved from the Crown, in so far as concerns 10000 pounds yearly, to be pay'd to the Lords of Session, in place of Quots of Testaments; and therefore the Lords of the Session do, conform to this Act, Decern summarly the Tacks-men and Collectors, to pay this 10000. pounds, and ordains them to be Charged with Horning.

BY the 4 Act Par. 18 Ja. 6. It is Declar'd,* 1.369 That Restitutions by way of Grace shall not prejudge those who acquired the Forefaulted persons Lands, either by a Lucrative, or an onerous Cause; but because, both by an inference from that, and by the Principles of the Common Law, these who are restored by way of Justice, might pretend to quarrel those, who during their Fore∣faulture were presented to Benefices, to which they were Patrons, upon pretext that they were to be restor'd intirely. Therefore it seems that this Act has been made; whereby it is declar'd, that such as are presented to Benefices, which were at the Presentation of Forefaulted persons, shall not be prejudg'd by their Restituti∣on; and which was very just, since Patrons are not prejudg'd; because it is presum'd, that the Ordinary would not Collate per∣sons that were insufficient; nor were Patrons allow'd to make any advantage by the Presentations; and upon the same principle, it seems reasonable to conclude, that a Minor cannot Revock a pre∣sentation granted by him, with the consent of his Curators, during his Minority.

THis Act Ratifies an Act of Privy Council, whereby Aegyptians were commanded to depart the Kingdom betwixt and the first of August thereafter, under the pain of Death:* 1.370 but it may be justly doubted, how the Council had power to make Acts inferring the pain of Death? Since it is a received Principle in our Law, as is clear by Craig and others, that the Secret Council can make no Act which may infer forefaulture of Life or Estate: and though by the Acts 124, and 147. Par. 12 Ja. 6. Judges be ordain'd to pu∣nish Aegyptians; and that by the 268 Act Par. 15 Ja. 6. Vaga∣bonds and Aegyptians are to be employ'd in Common Works: yet by neither of these Acts, is the pain of Death to be inflicted: and therefore it was lately Debated, that this Act was but at best, a Temporary Act; and so Aegyptians could not be impannelled for their Life: but yet this Act has been still repute a sufficient War∣rand for punishing by Death, such as were known, holden and repute to be Aegyptians. And I find, that upon the last of July 1611. Moses Schaw and others were Hang'd as Aegyptians; and it is notour, that immediatly after this Act Sheriffs and others did Hang very many, by warrand thereof; and the Act is not Tem∣porary, for it appoints them to be Executed in time coming, after the first of August; and the Act has ordain'd Aegyptians to be pro∣ceeded against as Sorners and common Thieves, who are by our Law to be punish'd with Death, as is clear by the Narrative of this Act, which bears that the Council had Commanded, That the Sor∣ners and common Thieves, commonly call'd Aegyptians, &c: should depart forth of the Kingdom; So that the Council has not inflicted the pain of Death upon a new Crime, but has only declared, That Aegyptians fell under the old Crime, that was punishable by Death: Nor can it be deny'd, but that from this and many other Acts it is

clear, that the Council has a power to extend and interpret Statutes, even relating to Life and Forefaulture; since the Act appoints on∣ly such to be punishable by Death, as are known, holden and repute to be Aegyptians: It may be doubted, what can prove that the Ae∣gyptians pannell'd, are known, holden and repute to be such? For which, beside the common Inferences of notoriety adduc'd by Mascardus and others, in probatione notorij. Our Law allows that such as call themselves Aegyptians, or go up and down the Coun∣trey, bleaking their Faces, telling Fortunes, and speaking the Gebrish peculiar to those people, shall be punished as Aegyptians: and ordinarly His Majesties Advocat chooses such Assizers as know the persons impannelled, to be commonly repute to be Aegypti∣ans.

These who are call'd Aegyptians in Scotland, are call'd Zigeni, Tartari, Bohemij, all which are remarked as idle Beggars, going about oppressing the people, and cheating them by vain Supersti∣tions, and Fortune tellings: of which sort of people Fritschius has written a Treatise, call'd, de origine Zygenorum & eorum coercitio∣ne; where are to be found, upon what pretext they were first suf∣fered in several Nations, which was, because they did assist several Princes in their great difficulties, having from being Vagabonds, gathered themselves under Captains for that effect, but continuing after Peace made, to grow insolent, they were ordain'd to be ba∣nish'd in Germany, by an Imperial Constitution, anno 1500. and in France, by the Act of Orleance, anno. 1561. and thereafter anno 1612. which is about the time of this Act; and in Spain. 1492.

* 1.371THe time of this Act, the Secret Council had a Commission from the King, to receive Resignations, and all the Procuratories of Resignations then, did still bear a Power to Resign in the Hands of the Secret Council: But now Resignations can only be made in His Majesties own Hands, or in the hands of His Exchequer.

THis Act extends to the Decreets of the Admiral and his Deputs, the priviledge of having Letters of Horning granted upon them,* 1.372 without the necessity of a Decreet conform, as was the old Cu∣stom, and in this it equals the Decreets of that Court, with the Decreets of Sheriffs, and Baillies of Burghs: But by the 29 Act Par. 1 Ch. 2. Whereby poinding is ordain'd to be granted upon their Decreets; the Parliament has forgot to extend that priviledge to the Decreets of the Admiral.

Observ. 1. That this Act declares the Admiral to be a Supream Judge; and therefore it has been decided, that he may reduce the Decreets of inferiour, or Admiral-deputs, and that he may re∣duce his own Decreets upon just Reasons, such as noviter proveni∣entes ad notitiam, &c. And which kind of Jurisdiction is compe∣tent to no Inferiour Judge: and yet the Lords of Session do sus∣pend and reduce his Decreets also, and Advocat Causes from that Court.

Observ. 2. That by this Act the Admiral is declar'd to have power of summar Execution; because Strangers and Sea-faring men cannot attend as others may; and therefore it is, that such as ob∣tain Decreets before that Court, may use Execution thereupon with∣in three Tides.

Vid. Observ. on the 16 Act Par. 3. Ch. 2.

King JAMES the sixth, Parliament 21.

HIs Majesty held a General Assembly at Glasgow; and in anno 1610. drew up some Articles to be presented to the Parliament, which are set down by Spoteswood,* 1.373 and many whereof are here confirm'd.

By this Act His Majesties Power to call Assemblies, is declar'd a part of His Royal Prerogative, Vid. 114 Act Par. 12 Ja. 6.

The Bishop is to be Moderator, and in his absence any whom he shall Name.

The Bishop only can Excommunicat, and with such Ministers as he associats to himself, He only can Depose.

In this Act likewise is set down a formula of the Oath of Supre∣macy.

As to the manner of presenting Ministers, it is formerly fully Treat∣ed in the Observations upon the 7 Act of the 1 Par. Ja. 6.

AFter King James the sixth came to the Crown of England, it was necessary that the Laws concerning the Borders should have been alter'd by both Kingdoms; and by this Act,* 1.374 there is a power granted to His Majesties Officers in England, to remand from the Courts of Scotland, that is to say, to require His Majesties Offi∣cers in Scotland, to deliver up English Malefactors, who had fled into Scotland: and another Act of the same Tenor verbatim, was past in England about the same time.

In place of the old Wardens of the Borders, there is now a Com∣mission granted under the Great Seals of both Kingdoms, to an equal number of Scots and English, who have in effect a Commis∣sion of Justiciary; and it was found by the Council of Scotland, that they could not quarrel the Decreets of the Borders, because they proceeded by a Warrand under the Seal of both Kingdoms; but the Laird of Haining having Charged Elliot for payment of a sum, for not presenting of a Thief to the Commissioners of the Bor∣ders, conform to a Decreet of the Commissioners, finding that he had Forefaulted the Bond, there was a Bill given in to the Coun∣cil, craving that this case might be remitted to the Commissioners of the Borders, and not Suspended by the Session; because, First, These Decreets being pronounced by the English, as well as the Scots Commissioners; the Session could not be Judges to what was

done, by vertue of an English Commission, and because they could not cite the English Commissioners; therefore they could not Re∣duce their Sentences.

2. The Commission of the Border is a Criminal Court, and the Lords of the Session are only Supream Judges in Civils.

3. The Border is judg'd by a Law unknown to us; and there∣fore since the Lords of the Session behov'd to Consult them, though they were Judges, it but multiplies Processes and Expences, to al∣low the Lords to be Judges in prima instantia.

4. If the Lords were Judges, all Thieves, or their Cautioners would offer to Suspend, or Reduce, which would much hinder that expeditness of Tryal, which is requisit to stop Thieving in the Borders.

5. If the Lords here review'd such Decreets, the Judges at Westminster would do the like, which would be very trouble∣some and expensive to us: The Council upon this Debate recom∣mended to the Lords to remit the Tryal▪ in so far as it was Cri∣minal to the saids Commissioners.

By this Act, Remanding is only to be granted after full proba∣tion of the offences of the persons, Remanded in open Court•• but this is now antiquated, and in Desuetude; because it was found by the Commissioners of both Kingdoms, to be unpracticable; if either the Names or proofs were published in open Court, the persons to be Remanded would flee, and the Witnesses might be corrupted: Therefore it was ordered by common consent, that the Commissioners of either Kingdom might Remand privatly from the Commissioners of the other Kingdom; and that the person so delated, might be immediatly seiz'd upon.

* 1.375THis Act is fully Explain'd, crim. pract. tit. Rapt.

THis Act is Explain'd in the Observations upon the 73 Act Par. 6. Ja. 6.* 1.376

THis Act Discharging all Actions of Spuilʒie committed upon the Borders,* 1.377 prior to His Majesties coming to the Crown of Eng∣land, is but Temporary; But from it, it may be observed, First, That the King and Parliament may dispense with the privat interest of parties upon a publick account: nor does the Act salvo jure, sub∣joyn'd to the several Parliaments, prejudge or derogat from this Act, upon pretext that the parties, whose interest was remitted and discharg'd, were not call'd.

2. In all such Discharges of privat interest, and Acts of Grace, discharging penal Statutes; exception is still made of Decreets al∣ready

obtain'd; for by the obtaining of the Decreet, before that Discharge, the Debt becomes innovated; and a private Debt, of the nature of other private Rights.

By this and many other, the like observations we may see, that the reading Temporary, and even abrogated Acts, is not useless, since material Observations may be made thereupon.

THis Act is Explained in the 177 Act Par. 13 Ja. 6.* 1.378

THis Act ordains Arch-bishops and Bishops,* 1.379 to build and repair their Houses and Manses, and that the Successor shall have acti∣on against the Predecessors Executors, who suffered them to decay, which was very just upon the same Reason, that all Liferenters are oblig'd praestare hanc cautionem ususructuariam: and where the Houses are in decay, and Repair'd by the Predecessor, the next Successor is to satisfie therefore, at the sight of two or three of the Bishops, within the Province; providing that the satisfaction ex∣ceed not 1000 pound, if they be Prelats: and 500 merks, if they be other inferiour Ministers: and by the 21 Act Sess. 3 Par. 1 Ch. 2. This is renewed as to the Maintaining of the Manse; but the Heretors of the Paroch, where there are no Manse, are oblig'd to build Manses, for Ministers at the sight of the Bishop, or such Mini∣sters as he shall appoint, not exceeding 1000 pounds, and not un∣der 500 merks; so that in effect, a Ministers Manse may be as dear by that Act, as a Bishops Manse is by this, which seems unreasonable; but their interveening more than 50 years betwixt the two Acts, the price of things, and Fees of Work-men, was much increased the time of the last Act.

Vide Papon Arrest. lib. 1. num. 15. & additiones num. 6.

King IAMES the sixth, Parl. 22.

THe Presentation of Bishops by Kings, begun in the Reign of Lewes King of France,* 1.380 about the Year 821. and was re∣sign'd to the Popes by Philip the first; and thereafter, by the Canon Law, the nomination of Arch-bishops and Bishops, did belong to the Pope only, as the Canonists affirm; but he transfer'd this power to the Chapters of Cathedral Churches, C. omnes. 22. dist. &c. fin- quaest. 7. and at last in France by agree∣ment betwixt Pope Leo the Tenth, and Francis the First of France; the nomination of Prelacies was after much Debate, granted to

the Kings of France; though it be pretended to be a priviledge be∣longing to Kings, in Synodo Aurel. quinta, as the Learned Pith••us has proven; and after that Concordat made in favours of Francis the first. It appears that King James the Fifth, who lived in the same age, and Married Francis the First's Daughter, did with His Parlia∣ment Declare, that the Nomination of Bishops did belong to the King of Scotland, and the Provision only to the Pope, Act 125 Par. 7 Ja. 5. But by this Act it is declar'd, That Arch bishops and Bishops shall be by His Majesties Licence Elected by the Dean and Chapter of their own Cathedral-kirk, to which they are to be pre∣fer'd, who being assembled by His Majesties Warrand, shall proceed to the Election of the Person named by His Majesty; and the E∣lection being Testified under their Seals and Subscriptions, he is to get a right to his Benefice under the Kings Great Seal, and to be Consecrated.

It is fit to know that this Warrand for meeting, is call'd with us, a conge d'eslire, which is a French word, signifying a liberty to Elect.

It is fit to know likewise, that with the conge d'eslire, there comes a Letter from His Majesty, recommending such a Person, whom the Dean and Chapter are oblig'd to Elect, by the words of this Act; and being Elected, the Election is Recorded in the Re∣gister of the Chapter: in which Register, all Deeds done by the Bishop, either for Entering Vassals, or granting Tacks of Teinds, are inserted. An Extract of this Election is returned to the Arch-bishop of the Province, and inserted in his Register; and by him Transmitted to the King, who thereupon grants a Patent to the Person so Elected, who after this is call'd Bishop Elect of such a See, which passes through all the Seals, and by which he has right both to Spirituality and Temporality; though this Act says, It shall only give right to the Spirituality; This being signifi'd to His Majesty by the said Arch-bishop; the King grants His Royal Mandat to a competent number of Bishops within the Province, (which cannot be under three, by the 3 Canon. 1 Concil. Nicen.) after which there is no new Gift to the Temporality, as this Act provides: only before his actual Possession, he makes his ho∣mage either to the King personally, or to one Commissionated to receive it; of which Oath and Homage, no mention is made in Ecclesiastick Story, till the fourth Counsel of Toledo, anno 633.

Nota, The Mandat for Consecration, passes only the Great Seal, per saltum..

It is natural to all Benefices that they should be vacant before they be fill'd; and the Right should express a modus vacandi; and therefore His Majesty having sent down two Conge d'eslires in January 1679. one in favours of the Bishop of Edinburgh to be Bishop of Ross: and another in favours of the Bishop of Galloway, to be Bishop of Edinburgh; It was advis'd that the Conge d'eslire, in fa∣vours

of Edinburgh, should not be presented till Edinburgh was vacant, by his being Elected by the Chapter of Ross.

It is observable likewise from this Act, that a Bishop has not right to the Temporalities, till after Consecration: For the Act sayes, That after the Consecration, His Majesty is to Dispone to the Person elected the Temporality; and the same being past under the Great Seal, the Bishop shall do Homage, and swear Obedience; neither shall it be lawful for him who is admitted to intromet with any of the Benefices, or Rents of the Bishoprick, until he have ta∣ken the said Oath, and done the said Homage. And thus the Eng∣lish Lawyers, following, as I conceive, that notion of the Common Law, that Episcopus est maritus Ecclesiae: They say, that Electi∣on is as the Sollicitation; the Confirmation is the Contract; and the Consecration is the Consummation of the Marriage: but where a Bishop is Translated, there needs no Consecration, either by the Canon Law, or ours.

The old Forms of Election was, that the King sent a Visitor to oversee the Election, and he return'd to the King the Decree of the Election, who Confirm'd it by giving investiture; and the Metrapolitan was oblig'd to Ordain the Person Elected, the Inve∣stitu••e of the Spirituality, was by giving a Bible; and the Tempo∣rality by a Ring and Baton, Vid. sirmund. form. lib. 2. formul. 6. and the Conge d'eslire succeeded in place of these Visitors.

BY this Act the Dean and Members of the Chapters of the Ca∣thedral-kirks within this Kingdom, are restor'd to their Manses,* 1.381 Gleibs, and other Patrimonies belonging to them.

The Chapter is to the Bishop, what Convents were to other Pre∣lats; that is to say, their Council, of which the Dean, or Decanus was the Head, under the Bishop. By the Civil Law, decanus erat ille qui defunctorum lectos seu feretrum gestabant, vid. Tit. de Deca∣nis, lib. 12. Cod. tit. 17. But by the Canon Law, Decanus comes from the Greek word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 because the Dean proceeded over ten Ca∣nons or Prebends; and their decani especially in the Cathedral Churches succeeded in place of the Archipresbyter; and therefore these two are taken in the same sense, cap. ad haec 7. de off. Ar∣chid. vide Bengeum de beneficiis, pag. 29. And with us, Deans are Created by the King, He being only Patron of that Bene∣fice.

The Chapter is call'd Capitulum by the Canon Law; because it is the little, or inferiour Head of the Diocy, and is defin∣ed to be Clericorum congregatio sub uno Decano in Ecclesia Cathe∣drali.

A Bishop in our Law, nor no other Dignifi'd Person who hath a Convent, can alienat without the consent of their Convent, or the greatest part of them, beside himself, who is the Disponer, in which number, Minors nor absents, are not counted; March 14. 1622.

If one of the Chapter have two Benefices, he will have two Votes; and albeit the Law Ordains them to be capitulariter congre∣gati; yet now sufficiunt eorum suffragia licet emendicata vel sevara∣tim impetrata, which is not only by meer custom, as Craig ob∣serves; but by Law likewise, Act 3 Par. 18. Ja. 6. and thus an Instrument of Resignation of a Benefice, was found suffici∣ent, though some of the Convent subscriv'd not before the Date of the Instrument, November 16. 1624. Providing alwise that none of their subscriptions be obtained after the Death of the Granter; for then they cannot be said to consent, seing they are not all a∣live together: from which it follows likewise, that the aliena∣tion is not valid, if any of the Convent, or Subscrivers be Dead before the rest subscrive; where many subscrive separatly, the consent of the last is drawn back to the consent of the first, Craig. pag. 91. and albeit Craig be clear, that the consent of the Chap∣ter is requisite, tam in renovatione quam in alienatione feudi: yet by this Act it is for the Vassals case ordain'd, that the Bishops or Chapters consent is not necessary to the receiving of Vassals up∣on Composition, or otherwise; but that the direct Superiour may receive them by himself.

Nota, By that part of the Act it seems, that though regulariter, Superiours are not bound to receive singular Successours: yet Kirk-men being Superiours are. If there be no Chapter, or Convent, the appending of the Seal of the Convent, with the Kings Confirma∣tion, is sufficient, Craig Ibid.

The Arch-bishop of Saint-andrews had of old, the Conventual Brethren of the Priory of Saint-andrews to be his Chapter: but by the 8 Act Par. 19 Ja. 6. power is given him (that Priory being supprest) to choose seven to be his Convent; and ordains, that the appending of the common Seal of the Convent, shall be sufficient to declare their consent, without their Subscription; which Act is innovat by this 2 Act, Wherein a Convent is particularly set down to him, but nothing spoke of the Seal: and therefore the appending of the Seal is yet suffici∣ent; for this Chapter comes only in place of the seven prescriv∣ed by the first Act; and the Subscriptions of these seven were not necessary, ergo, neither is the subscription of this Chap∣ter.

As the consent of the Chapter, or most part thereof is requisite to an alienation made by the Titular, as the Bishop, Abbot, &c. so reciprocally the consent of the Titular, and most part of the Chapter is requisite to the perfiting of all Rights made by any Mem∣ber of the said Chapter, of his particular Benefices, or of any Bene∣fice belonging to them in communi, which rule holds in all Con∣ventual Benefices, except that of the Arch-bishop of Saint-andrews; for it has been decided, that by this Act, any Member of that Chap∣ter therein Entered, may set Tacks, &c. without consent of the Arch-bishop of Saint-andrews, Novemb. 19. 1624. where these Con∣ventual

Benefices have Patrons; the consent of the Patron is like∣wise required, Craig.

Nota, That the Bishop of Edinburgh is by the Erection of that See, in anno 1633. made Chancellour and Vicar to the Arch-bishop of Saint-andrews, and so is the first Ordinary, or single Bi∣shop; which priviledges belong'd to the See of Dunkeld; and so the Bishop of Caithness has not now any suffrage in that Election, be∣cause they must be but eight in this Act.

AFter the Arch-bishops and Bishops were restor'd, the thirds of Benefices,* 1.382 out of which Ministers were provided for∣merly, came to be an unfit and unproportional Stock, for provid∣ing the whole Ministry of the Kingdom; and therefore by this Act, there is a Commission granted for planting and providing of Churches; and this is the first of the many Commissions which were granted by Parliaments afterwards to this effect, and their Decreets are to this day call'd Decreets of Pla•• in our pra∣ctice.

Observ. 1. The lowest Stipend allow'd by the Parliament here, is five Chalders of Victual, or five hundred merks: but by the 19 Act Par. 1 Ch. 1. The lowest Stipend is appointed to be eight hundred merks, or eight Chalders of Victual; and the Decreet whereby this is appointed, is call'd, The Decreet of Modification; Whereas, if the Stipend be divided, and proportioned as well as modifi'd, the Decreet is call'd, a Decreet of Locality: and this proportion is so far observ'd, that the Victual so modifi'd, was found by the Lords to be payable, according to the measure of the Shire, where the Paroch was, and not according to the measure of Linlithgow, where the modifi'd Stipend would not have come the length of the quantity allow'd by the Act of Parliament, according to the measure of Linlithgow, June 27. 1667. Minister of Dalrymple contra the Earl of Cassils.

Observ. 2. By this Act power is granted by the Parliament to the Commissioners, to unite, or dis-unite Kirks; which Union was likewise allow'd by the Canon Law, and is defin'd to be duo∣rum vel plurium benefi••iorum cum causae cognitione a superiore & ordinar••o in perpetuum Canonice sacta connexio, cap. exposuisti de Praeb. So that of old, the Ordinary only could unite Benefices; but now the King, as having come in place of the Pope, grants this Commission to unite, with the consent of Parliament, but the Bishop who is Ordinary, and the Patrons, if any be interested▪ must be likewise call'd; and the 5 Act Par. 23 Ja. 6. Ordains, that all persons interested in the Union be consenting: By which I understand the Ordinary, the Patron, the Incumbent, and the Parochioners; and this Act appoints, that if there be moe Patrons, they shall present, alter∣nis vicibus; and because it may be doubted who should be the first Presenter; in that case it is fit to know, that the lesser Benefice is alwise to be united to the greater; and so the greater remains still the Mother, Superiour, and principal Church, cap. recolentes de stat.

Monach. and therefore it would seem that the Patron of the Su∣periour Benefice, is to be the first Presenter.

The reason given by the Canon Law for uniting of Benefices, are, that the Rector, or Parson may be the better enabled to re∣lieve the Poor, and maintain Hospitality, the Churches being so near other, that one Person may conveniently serve the Cure in both: The great poverty of the Benefices united, and the few∣ness of the Parochioners. But with us Benefices are never united, but where the Stipends are small, the Parochs near, and the Charge little, or no Waters interjected; which qualifications are left by our Law to the Arbitriment of the Commissioners for planta∣tion of Kirks; for none else can unite with us: but by the Law of England, 17. Car. 2 cap. 3. It is lawful for the Bishop of the Diocess, Major of any Town, and the Patron to unite Churches, provided the Churches so united, exceed not the va∣lue of a hundred pound Sterling, vide Petrum de perusio in tractatu unionum.

Observ. 3. That there is power granted by this Commission to prorogat the Tacks of Tiends, when the Tacks-men are burdened with augmentations.

Observ. 4. That the Sentences of their Commissioners are to have by this Act, the authority and force of a Decreet and Sentence of Parliament; and therefore it is, that in our practice, the De∣creets of this Commission can neither be Reduced, nor Suspend∣ed by the Lords of the Session, and that because of the 39 Act Par. 11 Ja. 6.

* 1.383BY this Act no Arch-bishop, Bishop, or other Prelat can set any Tacks of their Patrimony for longer space than nineteen years; nor no inferiour benefic'd person for longer space than their own life∣time, and five years thereafter, but the Tacks otherwayes set, are not declar'd null, the Act it self not being conceiv'd irritanter, but only the benefic'd persons, who set the Tack for longer time than is express'd in this Statute, are thereupon deprivable, for ha∣ving contraveen'd the same; for the Parliament having declar'd that the Contraveeners are deprivable, but not the Tacks null. The Lords conceiv'd that the punishment being under the conside∣ration of the Parliament, at the time of the making of this Act; and they having determined the punishment to be Deprivation; but not having annull'd the Tacks: They thereupon concluded, that the Tack could not be declared null, though set for longer time than is declar'd by this Act, November 9. 1624. Hope contra Kinnaird.

Observ▪ 2. That by this Act it is declar'd, that all Tacks set for longer space than the time foresaid, shall be Registrated in a Book to be keep'd by the Clerk-Register for that effect, else to be null; and therefore Tacks, though for longer years, if they be Regi∣strated, are sufficient, Hop. tit. Tiends. Likeas, it has been found that Registration in the Books of Council and Session, is sufficient,

though it be prescriv'd here, that they be Registrated in a Register to be made for that peculiar use, since the Clerk-Register had not made such a specifick Register: all which was found in the foresaid Decision, Novemb. 9 1624.

Observ. 3. The persons allow'd to set Tacks for nineteen years, are Arch-bishops, Bishops, and Prelats: and though by the Canon Law, omnis honor qui ali••ui tribuitur propter administratio∣nem est praelatura: Yet by our Law, he is only a Prelat who has a Chapter; and therefore a Tack set by a Provost, is null, if it want the consent of the Patron; since Prelats can on∣ly set without the consent of the Patron, July 12. 1616. Hop. tit. Kirk-men.

Observ. 4. That exception is justly made in this Act of Tacks, set by Order from the Commission of the Kirk; for in effect these are not set voluntarly, but by Order from a Committee of Parliament, who when they grant augmentations, which bur∣den the Tacks-men, or Titulars of Tiends, do in recompence of that burden, prorogat their Tacks, for as many years as they think fit.

Observ. 5. That even Tacks for these years, are null, if they have not the consent of the Patron, by the 15 Act Par, 23 Ja. 6.

Observ. 6. That though Prelates may set Tacks of their Pa∣trimony for nineteen years; yet they cannot set Tacks of their Casualities for longer than their Life; such as Quots of Te∣staments, &c. as is provided by the immediat Subsequent Act, viz. Act. 5.

Observ. 7. That a Bishop cannot set a new Tack before the old Tack be expir'd, as was decided in favours of the Bishop of the Isles against Ascog; for else the present Incumbent might make the Benefice useless to the Successor; and it being against the nature of Benefices, that they should be set for longer time than the Incumbent has Right, it were most unjust to extend this.

Observ. 8. It may be doubted, if a Bishop may set a Tack, af∣ter he knows he is recommended to another See; for that seems fraudulent, though it be ordinary; and if it were allow'd, the In∣trant Bishop would certainly find all his Patrimony exhausted by such Tacks; and Laicks would get very easie Tacks; for the Set∣ter knowing that he were to be remov'd, would set Tacks for any Duty.

Observ. 9. It may be doubted if a Bishop who consented to such a Tack, when himself was a Member of the Chapter, can quarrel such when he comes to be Bishop of that same See; for though he may pretend that he is only to consent, and not debate, or inquire; yet this seems inconsistent with reason; for the Chap∣ter is appointed to be quasi Tutor; and so every Member is oblig'd to inquire; and therefore as he should not have consented, if he had not conceiv'd the Deed to be legal in it self, and fit for the See;

so ought he not to quarrel what he has already acknowledged to be fit.

* 1.384THis Act is formerly Explain'd, Act 11 Par. 10 Ja. 6.

* 1.385THis Act empowers the Lords of the Session to grant Letters for Charging the Parochioners to meet and Stent themselves, for furnishing Basons and Lavers for Administration of the Sacra∣ment of Baptism; and Cups, Tables, and Table-cloaths, for Admi∣nistration of the Communion, and which is accordingly observ'd; but though the Rubrick does generally bear, Furnishing of necessa∣ries for administration of the Sacraments; yet the Communion Ele∣ments fall not under this Act; but when Stipends are modifi'd by the Commission for Plantation of Kirks; there is likewise a parti∣cular sum modifi'd for the Communion Elements, which the Mini∣ster was once found to have right to, though he do not Admini∣strat the Sacrament yearly, but now it is design'd that this should be al∣tered, and that that Money should be ordain'd to be put in the poors Box.

* 1.386BY this Act the Nobility, or Prelats are allow'd to Vote by Proxies, if they be lawfully excus'd.

Observ. 1. This is not allow'd to Barons, nor Burgesses; be∣cause the allowance is only specifickly given to Dukes, Marques∣ses, Earls, Viscounts, Lords, or Prelats; and yet I see no reason for the Distinction; but on the contrary, it seems more reasonable that to the end a whole Shire may be represented; that therefore they may be allow'd to deput some to Vote, in case others be absent; for though it may be answer'd that the power of Proxies is unne∣cessary in Shires, because if their members be necessarly absent, they may choose others: For to this it may be reply'd, that they cannot choose new Commissioners, except in case of De••th; whereas the Shire may be much concern'd to have their Proxies at any one Dyet. Likeas, by the 52 Act Par. 3 Ja. 1. All Free-holders are allow'd to have Proxies in case of lawful ab∣sence from Parliaments. It is ordinary also for the chief Bur∣rows to choose, and send an Assistant to attend their Commissi∣oner.

Observ. 2. By the said 52 Act Par. 3 Ja. 1. absents seem only to be allow'd to send their Procurators for excusing their absence; but by this Act they are allow'd to Reason and Vote; and there∣fore it may be doubted, whether a Brother who cannot Vote in his own Brothers Cause, may notwithstanding be admitted to Vote for his Brother as Proxie for another, to whom his Brother is a stranger; since here sustinent personam extranei; but seing the affection is the same, I think they would not be allow'd; nor does the Parliament now allow Proxies in any case.

It may be li••ewise doubted, if this Act may be extended to Conventions, since the Act speaks only of Parliaments; and does not add, or other General Councils, as the Act 113 Par. 11 Ja. 6. and other Acts do; but yet the Act 52 Par. 3 Ja. 1. allowing Proxies in absence, speaks of Parliaments and General Councils.

Obs. 3. It is the Kings advantage and interest that Proxies should be allow'd; for they are only to be allow'd by this Act, where the reason of absence is warranted by the King, His Commission••r, or Council; and so the King may allow Proxies, or not, as He pleases, and needs never allow any to those whom He sus∣pects; which is also the present Custom of England, as to the Peers.

Observ. 4. That though Letters of Actourney out of the Chan∣cery, be sufficient for absence in other Courts; yet by this Act, the absents must give a written warrand under their own hand.

THis Act gives instructions to Justices of Peace and Constables, which i•• renew'd,* 1.387 and somewhat altered by the 38 Act Par. 1 Ch. 2. But by this Act, their Decreets are ordain'd to receive Execution by Letters of Horning and Poynding; and that no Suspension shall be granted, but on Consignation; which Consig∣nation is neither appointed by the foresaid Act 38. nor is it now in viridi observantia: and though by both the Acts, they are or∣dain'd to proceed against Cutters of green Wood, Slayers of red and black Fish, &c. yet they are not in use to proceed in such cases; because the Act appoints, that Commissions shall be grant∣ed to them for that effect; but these Commissions have never as yet been granted: Though by our Customes, no person can be hol∣den as confest, except they be personally cited; because else men might be drawn in snares, by Citations at Dwelling-houses; yet here they are allow'd to be holden as confest upon the second Ci∣tation at their Dwelling-houses because the subject is small in Justice of Peace Courts.

This Act is likewise Explain'd, crim. pract. tit. Justices of Peace; and is Ratifi'd by the 38 Act Par. 1 Ch. 2. Where the Council is allow'd to grant them, what further instructions they shall think fit.

The Council uses to name Justices of Peace, in place of such as dy; and it being alleadg'd that all Commissions for Justices of Peace should slow from the King immediatly, this was refu∣sed by the King, as being contrary to the constant Custome of Council, whom the King allows to name Justices of Peace.

BY this excellent Act, such as have peaceably possessed their Lands for fourty years, are secured by Prescription.* 1.388

As to this Act it is observable; First, That Prescription is on∣ly competent to such as have bruiked by vertue of Heretable In∣feftments;

and therefore he who alleadges Prescription, must alleadge an Heretable Title; but though the Possessor be not ex∣presly Infest; yet if he has possessed the subject, as part and perti∣nent, it will be sufficient; and therefore a Salmond-fishing was found to be prescriv'd, though it was alleadg'd to be inter regalia, since the Prescriver was Infest cum piscationibus in general, Febru∣ary 7. 1672. But if the Prescriver be Infest upon a bounded Evi∣dent, it will not furnish him a valid Title for prescriving, as part and Pertinent, any Land that is without the bounding, November 14. 1671. This Act is also extended to Heretable Offices, as to Patronages, Pensions, and all Servitudes, though not expresly mention'd; and though Heretors and Wodsetters are enumerated, sometimes as different from one another, Act 6 Sess. 2 Par. 1 Ch. 2. yet Heretage in this Act comprehends Wodsets, and it is even ex∣tended to long Tacks; so that it was found, that after fourty years they could not be quarrel'd, as granted without consent of the Pa∣tron, July 7. 1677.

This want of a Title likewise, and of bona fides, hinders a Vas∣sal to prescrive against his Superiour, since the reddendo of that same Charter, whereupon he founds his prescription, ob∣liges him still to know his Superiours Right; and by this Act for the same cause, a Wodset cannot prescrive, where the Reversion was incorporat, in the body of his own Infeft∣ment.

Since this Act appoints that His Majesties Lieges bruiking for 40. years, shall have Right by prescription; it may be doubted, whether prescription can run in favours of strangers, who have not been Na∣turalized?

Observ. 2. That these fourty years are only to run from the date of their Infestments by this Act; and yet in warrandice, it is on∣ly to run from the date of the Distress: but from both it is clear, that the reason is, because till then, they who have such Rights, non valent agere; and therefore the exception allow'd by the Ci∣vil Law of non valens agere, is allowable in ours, though it be not expressed in this Act, as minority is, whereby it seems that ex∣ceptio firmat regulam in non exceptis. Likeas, it was found in the Earl of Lauderdail's case, against the Earl of Tweddel, that Lau∣derdail being Forefaulted by the Usurpers, prescription could not run against him during that Forefaulture; but where there is a Title, prescription may run, albeit the Defender was absens rei∣publicae causa, at the least, durst not come home in the Usurpers time, for alleadg'd Crimes committed against them, as was found in White-foords case, the 24 of July 1678. He having kill'd in Holland Dorislaus, one of the Kings Murderers, for the Lords thought that he might have Transferr'd his Title to another, and if this reason hold it seems that absens reipublicae causa in general, is not sustainable as Mino∣rity is, since these who are absent may leave Procuratories to pursue their Rights.

It may be likewise debated, that such as are vi majore hin∣dred from coming to pursue, as being taken by Robbers, or Pi∣rats, should have the priviledge of non valentes agere, though no exception be made of them here, for though the chief design of the Act be, to establish Heretable Rights in the persons of singular Successors, who cannot know such accidents, and are secure if they find a fourty years progress: Yet prescription was at first introduced, for punishing the slouth of the Proprietars, amongst other Rea∣sons; and therefore non valens agere, was allow'd by the Civil Law and ours.

It may be also doubted, whether prescription should run a∣gainst a furious, or mad Man, since they are minors in the con∣struction of Law, and so are to have Curators, and are less ju∣dicious oftimes than Minors are; but yet since they are not ex∣prest here, when the Law secur'd priviledg'd Minors, it is pre∣sum'd they were designedly omitted; and it were hard to know who are Furious, and Furiosity might continue eigh∣ty or ninety years; or a man might feign himself mad, &c.

Observ. 3. That this Act makes a difference betwixt such as are singular Successors (who must produce for the Title of their Pre∣scription, not only a Seasine, but a Charter) and Heirs who need produce no Cha••ter, but Seasines, one or moe, proceeding upon Retoures, or Precepts of clare constat; But because the Act sayes, That they shall produce Seasines, one or moe continued, or standing together for the space of fourty years; therefore the Lords found; that Seasines must be produc'd by the Heir, by vertue wh••reof, he and his Predecessours have bruiked for fourty years, during their being Infest; and so where the Father was Infest, and lived thirty nine years; yet the Son not having been Infest, though he and his Grand-child possessed for above 100. years: This Sea∣sine was not found a sufficient Title for prescription, February 15 1671. Earl of Argile contra Menauchtan, and the reason is, be∣cause a Seasine is but assertio notarii; and therefore it was too lax a foundation for an Heretable Right; and one Seasine may be ea∣silier forg'd than moe Seasines can, and one Seasine being forg'd, may be laid up in the Charter-Chist, so that the true Proprietar could not, before the Registration of Seasines, know how to im∣prove the same: and since this Act requir'd no Charter from Heirs, it was just that it should require more Seasines, to secure against Falshood: But since the Act appointing Seasines to be Regi∣strated, the argument of easie Forging is much taken off; Because the Act of Parliament sayes, That it is necessary to produce a Charter, grant∣ed to them by their Superiours and Authors: It may be doubted whe∣ther the Superiour is oblig'd to receive a Vassal, though fourty years in Possession, except he or his Predecessors can shew a Char∣ter from him; and that because, not only does the Act of Parlia∣ment

say Copulative Superiours and Authors; but without this, there is no Title against the Superiour: and some rather think the Su∣periour would b•• excluded by this fourty years Possession from his Right of Supe••iority.

Observ. 4. Though the Act require Charter and Seasins, yet a Disposi••ion, or Precept of Seasin would be sufficient▪ for many com∣pleat Rights have no Charter.

Observ. 5. These fourty years run, de momento in momentum; and therefore the Prescription wanting a day, was not sustain'd, July 6. 1671. Though it was alleadg'd that de minimis non ••••rat pr••tor: and it would be severe to take away the old Heretage of a Family, for want of one day, or hour.

These fourty years are tempus continuum, and not utile; and there∣fore the Law subduces not from the Compt, those years in which Ju∣dicatures were not patent; or in which, War and Pestilence hin∣dered the Proprietar to pursue, the 30 of June 1671. but it may be here doubted, quid juris, if Judicatures were not open through War, or Pestilence, for the greatest part of the whole fourty years.

Observ. 6. This Prescription runs against His Majesty, as well as Subjects, for the Act sayes expresly, that these who have posses∣sed fourty years, shall not be troubled by His Majesty, or any other, which was exprest, least 〈◊〉〈◊〉 it might have been alleadg'd that the negli∣gence of His Majesties Officers, should not prejudge him in not pursuing, &c. Which are the express words of the 14 Act 16 Par. Ja. 6.

Observ. 7. That by this Act the Prescription was drawn back in favours of these who had possessed fourty years, prior to the Act; for drawing back whereof, nothing can be answered, but that this Remedy was previously allow'd by the Civil Law; but least the Subjects might have been hereby prejudg'd, thirteen years are allow'd to run from the date of this Act, so that though they had possessed fourty years before the Act, they could not prescrive, except they had likewise possessed 13 years after this Act; and though in this Clause the priviledge of Minority be not repeated; and that it seems that the Parliament design'd not to deduce mi∣nority out of so short a time, as 13. years, since having had it un∣der consideration in the Act, they excepted it not in this Clause; yet it was found that Minority was to be discounted even in this case, Ju∣ly 5 1666.

Observ. 8. That by this Act it is declar'd, that except the Sum∣mons be Call'd and Continu'd, it shall not interrupt Prescription; and it is declar'd, That the Raisers of Summons shall not be oblig'd to insist, except where the Summons is called and continued, and the

Defenders of new Summoned thereby: and yet the 3 of July 1647. El∣le••s contra Scot. It was found, that upon a single Summons, one may be forc'd to insist, which I cannot reconcile with this Clause, except by restric••ing this Clause meerly to the Course of thirteen years here specifi'd, and generally a first Summons Executed, in∣terrupts Prescription, January 26. 1622. And of old, the Exe∣cution of a first Summons did interrupt, though they bare no ex∣press relation to the Summons, upon which the Interruption was founded: but because there were several Summons at the same parties instance; so that the Execution of one Summons might be obtruded for the Execution of another. It is appointed that the Execution of Summons shall bear express relation to the Names of the Pursuers, and Defenders; and it shall not be sufficient that the Execution does generally relate to the Summons by the 6 Act Sess. 3 Par. 2 Ch. 2. and it had been fit, that the Act had added, that the Execution should bear the nature of the Action deduced in the Summons; for else, where the Pursuers and Defen∣ders are the same, one Execution may be still obtruded for ano∣ther.

Observ. 9. Albeit this Act appoints all Rights to prescrive; yet it was found, that Heretors cannot prescrive a Right of their T••••nds against Titulars, except the Lands were Feued, cum de∣cimis inclusis; but that they might prescrive Liberation for by∣gones preceeding fourty years, as in Customs and Feu-duties, which prescrive not▪ quoad the Right, though neglected four∣ty years, February 7. 1666. Earl Panmuire contra the Parochi∣oners of Inverness: Vid. Observations upon Act 57 Par. 5 Ja. 4.

Observ. 10. That Falshood never prescrives by our Law: but whether this be in our Law peculiar to that Crime; I have De∣bated crim. pract. tit. Prescription.

Observe also from the Narrative of this Act, that the Regi∣stration of a Paper in the publick Register, is a great Adminicle of Approbation, for the Paper must be left there: Though Falshood prescrives not, when the Paper is produced, and the Pursuer of∣fers to improve the same: yet it may be doubted, whether when Papers are only call'd for in an Improbation, in order to a Certi∣fication, and for trying of the Defenders Rights; Prescription may not be receiv'd against that presumptive Falshood, wherein the Writs are only Declar'd to be false, fictione juris, and the true in∣tent of such Improbations, is in effect but to try the Rights civi∣ly; and so it resolves properly, but in a Reduction, though that dangerous Certification of presumptive Falshood is adjected, ob ter∣rorem.

* 1.389BY the 57 Act Par. 5 Ja. 4. Summons of Error prescrive with∣in three years, in so far as concerns the punishment against these who have committed the Error, who cannot be punished af∣ter three years: But yet by this Act, the Retour it self may be Reduced at any time within twenty years: which Prescription of twenty years, militats only in cases of Competition, betwixt the several kinds of Heirs amongst▪ themselves; as whether the Heir of Line should be prefer'd to the Heir of Tailʒie; But it does not exclude the clear interest of Blood; for jura sanguinis nullo jure civili dirimi p••s∣sunt l. 8. ss. de Reg. Jur. and therefore an ••lder Brother was found to have good interest to Reduce a second Brothers Retour, Janua∣ry 11. 1673. By this Act, though such Ret••ures may be Redu∣ced in prejudice of persons so served: yet if the person so served have Dispon'd their Right to singular Successors, having bona fide acquired Rights, as said is, they cannot be prejudg'd▪ And in our Law this is still introduced, for the good of Commerce, in favours of singular Successors; for how should they know that the Retour was Reduceable, Vid, Act 18 Par. 23 Ja. 6. Where the like priviledge is granted to singular Successors of Bank∣rupts.

* 1.390BY this Act we find that Executors Nominat had formerly by vertue of their Office, the whole D••functs part of the Execu∣try, that is to say, the whole Executry, if there was no Wife or Bairns; the half where there was only a Wife and no Bairns; Or only Bairns, and no Wife: and the third, where there was a Wife and Bairns: But by this just Act, they are only ordain'd to have a third of the Defuncts part; and there was good reason for abrogating the former Custom, where∣by the Executor was in effect universal Legatar, where there was no other Legatars. Albeit in reason the Executor should only have had some small acknowledgement for Executing the Defuncts Will.

Observ. 1. That albeit the Narrative of this Act mention only the case of strangers, who are Executors nominat; yet where a Wife is nominat, she has the same Interest, viz. a third of De••ds part, to which she will have Right, beside her own half, or third of the Moveables, as Relict; so that all are understood to be strangers in this Act, except the nearest of Kin, who would fall to be Executors by Law; But if one of moe nearest of Kin were nominat, it might be doubted what share of the Moveables such an Executor would have, whether he might claim a third of Deads part, as Executors nominat, and a separat Interest as one of the nearest of Kin? It seems probable, that if there were only two nearest of Kin, where∣by the Benefite as nearest of Kin would be greater than as Execu∣tors, he would only have the half, and nothing as Executor; be∣cause by this Act, if the Executors have a third of Deads part by any

other Title, he is not allow'd another third by vertue of the Act; and albeit a Wife have both a half, or third as Relict, and a separat third as Executor; yet the Relicts part is not by Successi∣on, but is her own proper Interest, arising upon the Dissoluti∣on of the Marriage: Whereas the question is here only as to Deads part: But if there were moe in the same Degree to the Defunct than three Persons, whereby the Executors Interest, as nearest of Kin, would be less than a third; In that case he might claim the benefit of this Act; Because though the main and or∣dinary Case considered, is of Executor Strangers: Yet the Statu∣tory part of the Act is general: and it were against Reason that the nearest of Kin should be in a worse condition than a Stran∣ger.

Observ. 2. That this Act relates only to Executors nominat; and therefore Executors Dative have no more for Executing the Office, than their Expences, which is very reasonable: for other∣wayes S••••angers would frequently ingire themselves to the pre∣judice of the nearest of Kin November 28. 1676. •• Ker contra Ker.

Observ. 3. That notwithstanding of this Act, where there is an universal Legatar, the Executor gets no part of the Defuncts part, January 15. 1674. Patoun contra Leishman. November 29 1626. Forsyth contra Forsyth.

Observ. 4. That by the Confirmation of the Defuncts Testa∣ment, the interest of the nearest of Kin is ipso jure Established, so that albeit the nearest of Kin should immediatly Decease before Executing of the Testament, the interest that was competent to him, is Tra••smitted to his Children, or nearest of Kin, as was found, February 12. 1662. Bells contra Wilkie, Where the three Sisters of Patrick ••ell being Confirm'd as Executors, whereof one Deceasing before Executing the Testament, her Son did 〈◊〉〈◊〉 in his Mothers Testament, the third part that belonged to his Deceased Mother, for which the two surviving Executors were found countable to him; but where the nearest of Kin Di∣ed before the Testament of the Defunct was Confirm'd; It was found that the Interest which would have been competent to that nearest of Kin Confirming was not Transmitted to his Execu∣tor; but that there was place for the nearest of Kin, of the first Defunct, February 17. 1663. Forsyths contra Paton: Where it was also found, that a Child having survived his Mother, did not Transmit her third to his Father as a legittim; But that the Father was lyable for the third of his Moveables to his Wifes Brother, who was her Executor, and nearest of Kin.

* 1.391THere are two cases provided for in this Act; First, That Liferent Tacks of Lands and Tiends, shall not fall under single Escheat, but under the Liferent Escheat; and yet if the Superiour, to whom that Life-rent-escheat falls, go to the Horn, that same Liferent-escheat of the Vassal will fall under the Superi∣ours single Escheat; for it is no Liferent in the Superiours person, for he has only Right to it during his Vassals Lifetime, but not du∣ring his own: as also, for the same reason, if the King Gi••t the Liferent Escheat to a Donatar, it will fall under the Donatars single Escheat; and if the Donatar assign the same, it will fall un∣der the Assigneys single Escheat, not because Assignations makes that moveable which was Heretable, for Assignations alter not the Na∣ture of the thing assign'd; but because the Assigney has not these Rights for his Lifetime.

The second part of this Statute provides, that in case any Tacks of Lands or Tiends, contain more Lifere••ts; The First Liferent only shall fall under the Liferent Escheat by the first Life∣renters Rebellon: But the remnant Liferenters, or Heirs, shall not be pre∣judged.

It is fit here to observe, that if a Tack be set for fifty or sixty years, yet it falls under the single Escheat, for all that falls not under Liferent-escheat, falls under single-escheat; and this, nor no such number of years is a Liferent, but quid juris, if a Tack be set for a hundred years, which is a Lifetime by express Law. And since Tacks were the only habile way of Transmitting Tiends of old, and are yet the ordinary way, it is hard that all our Rights to Tiends shall fall under single-escheat.

* 1.392BY this Act, all Reversions, Regresses, or Bonds for making Reversions or Regresses, or Assignations thereto, and all Sea∣sines are to be Registrated within sixty dayes, after the date of the same; and I find that Sand. decis. Fris. lib. 3. tit. 12. def. 15. shews that they have the same Registration of Hypotheques in immobili∣bus.

Observ. 1. This necessity of Registration is only introduc'd in favours of singular Successors, acquiring posterior Rights; and therefore the nullity of not Registration, was not sustain'd at the Instance of one who had no standing Right in his Person, March 25. 1633. Nor is this Nullity sustain'd in favours of the Disponer, or his Heirs, for quoad them, these Rights are valid without Re∣gistration; nor was it sustained at the instance of the Son▪ who got the Estate Dispon'd to him by his Father, with power to the Father to burden it with a Sum, since this Son was found to be no third party, February 27. 1667. And for the same reason it was found, that the Superiours Seasine was not quarrellable by the

Vassal: This necessity of Registration being only introduc'd in favours of such as have posteriour, Heretable Rights, June 12. 1673.

Observ. 2. It is thought that the sixty dayes, within which Seasins are to be Registrated, are so to be counted only, that either the day upon which the Writs are dated, or the day on which they are Registrated, must be free.

Observ. 3. That since the Act sayes, That these Seasins and others shall be Registrated in the places designed in this Act; That there∣fore it may be doubted, whether when Lands ly within different Shires, but are united, if in that case they are to be Registrated in the Shire where the place lyes, at which Seasine is to be ta∣ken by the Charter of Union, or at all the places where the Lands ly.

Observ. 4. Though this Act appoints Renunciations, and grants of Redemption to be Registrated: Yet the Lords found, that Or∣ders of Redemption fall not under this Act, and need not be Re∣gistrated, July 29. 1623. But yet they found, that an Infest∣ment of Annualrent could not be taken away by Discharges grant∣ed by the Debitor, nor by Compensation of his Debts, in prejudice of a singular Successor, who had Right to the said Annualrent; and that because, First, The design of this Act appears by the Narrative, to be made for security of Buyers; and buyers could not be secured, if such latent wayes of extinction were allow∣ed.

2. An Infeftment of Annualrent is Constituted by a Seasine, which must be Registrated; and therefore it cannot be taken a∣way, but by a Renunciation, or some Paper which must be Regi∣strated.

3. By the 3 Act Par. 2. Ch. 2. Instruments of Resignation, ad remanentiam, whereby Rights are taken away, are by the same Ar∣gument ordained to be Registrated in the same way that Seasins are.

4. Though by this Act there be not express mention of Rights of Annualrents; yet they are comprehended under the word Wod∣sets; for an Infeftment of Annualrent is but in effect a Wodset of the Rents; and though this Act is only urg'd against such as an∣nalʒie their Lands; and that it was urg'd, that an Infeftment of Annualrent was not an alienation of Lands, but rather a Ser∣vitude upon them; yet this is a mistake, for an Infeftment of Annualrent is an alienation, else it could not infer Re∣cognition, as without doubt it does. As also they found, that Renunciations of Annualrents, which were holden of the Disponer, are sufficient without any Resignation, ad remanen∣tiam; though it was alleadg'd, that as a Charter without a Sea∣sine cannot Constitute an Annualrent; so neither can a personal

Renunciation, without an Instrument of Resignation extinguish it; But because this Act ordains these Renunciations to be Re∣gistrated; therefore they are valid against singular Success••rs, else why should they be Registrated, January 7. 1680. Mcclelland con∣tra Mushat.

Since this Act of Parliament requires that all Seasines, Renunciation; of Wodsets, &c. shall be Registrated, I think the Booking of them is necessary: nor is it sufficient (as some pretend) that they are produ••'d, and ma••ked by the Clerk; because (as they say) the Lieges can do no more, and they ought not to be punish'd for the Clerks negligence; for if this were sufficient, no singular Succes∣sor could be secure, and the producer may pursue the Clerk if he book them not, since the Act of Parliament requires actual Regi∣stration.

By this Act all grants of Redemption are to be Registrated, for securing singular Successors; but seing the using an Order of Re∣demption, with a Declarator thereupon, will evacuat the Wod∣set, even as to a singular Successor; and yet he cannot know whether there be such an Order used, and Declarator obtain'd, it not being requisite that either of these should be Registrated; it seems that singular Successors are yet unsecure: As also, since if a person obtain a Decreet against him to whom he sold his Land, decerning him to grant him a Reversion, conform to his promise, this will be valid against a singular Successor (though the pro∣mise was not) and yet the singular Successor cannot know this Decreet, nor needs it be Registrated; and therefore this Register seems yet no sufficient, and adequat Remedy in Wod∣sets.

Observ. 5. That by this Act it is provided, that Seasins and Reversions therein contained, given by Provost and Baillies of Burgage Lands needs not be Registrated, neither in Burgh nor Shire, as was decided July 21. 1666. And that Seasins of Lands in Leith need not be Registrated, though it be no Burgh Royal, July 10. 1623. The reason of which Exception was founded upon the ex∣actness of Town Clerks, and the constant Custom thereof, Book∣ing how soon the Seasin is granted; and so far are Seasins with∣in Burgh exeem'd from such Solemnities, that the Lords sustain'd a Seasin within Town, being subscribed by the Town Clerk, though there was no Vestige of it in the Towns Register, nor the No∣tars Protocal, and was Latent for many years, June 30. 1668. and thus singular Successors were not sufficiently secur'd by this Sta∣tute within Burghs, for though Town Clerks use to Registrat, yet there being no necessity upon them to Registrat, and the Seasin not being annulled for not Registration; it follows clearly that there is no security; and therefore by the 11 Act Par. 3 Ch. 2. This is alter'd, and the necessity of Registration is thereby ex∣tended to Seasins within Burgh, and to all other Writs, which by this Act must be Registrated.

THe Form us'd in loosing Arrestments of old,* 1.393 was by the Mes∣sengers giving a Testificat under his Hand, that the Arrest∣ment laid on by him was loos'd; this being too great a Trust for a Messenger, and they receiving oftimes irresponsal Cautioners. By this Act it is ordain'd, that Arrestments shall be loos'd only by Let∣ters on Bills past by the Lords, which is now observ'd, and Cau∣tion is found to a particular Servant in the Bill-Chamber, to whom the Trying that the Caution is sufficient, is referr'd, and the or∣dinary way to hinder an unsufficient Cautioner, is by getting a Warrand in praesentia from the Lords of Session, for that Effect, af∣ter presenting whereof to that Servant, if insufficient Caution be receiv'd: The Lords will give Warrand to Arrest de novo; but if the Caution be once found, and the Letters exped; The Lords will not allow upon a Bill, Arrestment to be made de novo, nor recal their Letters, though the Caution be insufficient, the Clerk of the Bills being answerable by his Office for the sufficiency of the Caution.

THis Act grants power to all who are Infeft in ••o••••est••ies to Judge such as shoot and kill Vennison,* 1.394 and Wild-fowl there∣in, and that by an Inquest, which seems to exclude all other wayes of Tryal; for inclusio unius est exclusio a••••••rius; and this Inquest was ordain'd to prevent the partiality, and passion of the He∣retor.

THis Act punishing Drunkards by sining,* 1.395 is not well enough observ'd, though it be renew'd Act 19 Par. 1 Ch. 2. It seems by this Act that the Kirk is regulariter, founded in the judgeing and sining of Drunkards, though it may be alleadg'd that this were to secularize too much Kirk Sessions, which is properly an Ecclesi∣astick Judicature, and by the Commission granted to the Justices of Peace; The Justices seem to be made the only Judges, as appears not only by the Instructions given to them, but by the said 19 Act Sess. 1 Par. 1 Ch. 2. Though it be alleadg'd that Kirk-sessi∣ons have likewise a cumulative Jurisdiction for punishment of all Scandals; for which the 22 Act 3 Sess. Par. 2 Ch 2. is alleadg'd, and the constant practice of the whole Nation; and it was found by the Council, May 1681. The Kings Advocat contra the Justices of Peace of Dumfermling; that the Kirk-sessions might uplift such fines as were voluntarly pay'd to them for such Scandals, without being countable to the Justices of Peace for them.

THe difference betwixt a Caulp and Hereʒeld,* 1.396 is that a Caulp is is the best aught, or Beast that a man has, which is due to the Chief, or Master, after his Death for protecting his Bairns, given by express paction; whereas a Hereʒeld is the best Beast due to the Master only by Law, after his Tennents Death:

Caulps are here Discharg'd, but Hereʒelds were allow'd, Quon: Attach. cap. 23. But it would seem that Hereʒelds, and all taking of the best Beast is discharg'd by this Act, albeit indeed they are not.

* 1.397THis Act is Explain'd in the 45 Act Par. 11 Ja. 6. To which is to be added, that by this Act, the Relicts and Bairns of No∣tars being oblig'd to bring in their Protocals to the Clerk-register within fifteen dayes, after any Notars decease; the Register uses to appoint a Deput, call'd now, the Clerk of the Notars, who draws their Bill, and receives Caution from them; and is by his admission oblig'd to do Diligence to mark the Books of Notars, and to receive Band for their returning their Books; and therefore Sir William Primrose, for not doing Diligence, was Depos'd upon a Bill to the Lords, February 19 1680. Though he alleadg'd that the Wives and Bairns only of the Notars, were oblig'd to bring in their Protocals, but not he, and he was content for the future, to follow what Instructions should be given him.

King IAMES the sixth, Parl. 23,

THere being a General-Assembly held at Pearth in August 1618. by Hadingtoun, Southesk, and Scoon, as His Ma∣jesties Commissioners;* 1.398 there were five Articles therein past, in order to uniformity with England, viz. Kneel∣ing at the Sacrament, Privat Communion, Privat Baptism, Confir∣mation of Children, and the observing some Festival Dayes, for confor∣mity with the Church of England, as far as was possible; Which Ar∣ticles are here Ratifi'd in Parliament; nor is there any standing Law made since to abrogat them; albeit for Peaces sake, they have not been much observ'd.

* 1.399VId. observ. on Act 3 Par. 22 Ja. 6. Supra.

* 1.400IN this Act it is warranted, that such as Compris'd great Estates for small sums, did notwithstanding, possess the whole Rents for payment of their small Annualrent; and therefore to Correct this, it is ordain'd by this Act, that the Comprizer shall impute in pay∣ment of his principal sum, the superplus of the Rents of the Lands intrometted with by him, and the true reason of the former Cu∣stom was, because by the 37 Act Par. 5. Ja. 3. The Lands Com∣prized were to be adjusted by the Sheriff, with the sums Com∣prized for, and so the Rent was at first but answerable to the

Annualrent, though thereafter all being Comprised, the Com∣priser appropriated all the Rents, without imputing, as said is.

Observ. 2. That this Act makes only the Compriser lyable for his actual intromission; and it has been found that the Compriser is not bound to intromet: But yet this is so severe to the poor Debitor, and the other Comprisers, all whom the first Compris∣er may debar, and so suffer the Tennents to Bankrupt, and the Lands to become waste; that therefore if a Compriser once intro∣met, he is bound to continue his intromission; and where there are Tacks standing, he is bound to do Diligence, February 9. 1639. or where there are moe Comprisers, the Lords may force the first Compriser to do Diligence, or if he do not betwixt and such a time yearly, they may allow access for the second to enter to the Possession, February 11. 1636. July 1662. Or if the first Com∣priser exclude any Diligence that the second is using, he will eo ipso be lyable thereafter to do exact Diligence.

Observ. 3. By this Act it is Declar'd, that upon payment of the principal Sum and Annualrent, and the Expence bestow'd by the Compriser, in passing and obtaining Infestment together with the Annualrent of the said sums, and the necessary Expences bestow'd in leading the Comprising, that then the Comprising shall expire ipso facto▪ that is to say, by way of exception, without Declara∣tor, though ordinarly an order of Redemption be us'd; and not only does payment, or intromission with the Mails extinguish the Comprising, and prove against singular Successors, but even any acknowledgement of payment by the Leader of the Comprising will extinguish the Comprising against those singular Successors, July 23 1662.

Observ. 4. That the Comprizer is to get allowance of a years Duty, as due to the Superiour by this Act, and though he get himself entered for less by the Superiour than the years Duty, yet he will get allowance of the full years Duty that was due to the Superi∣our, whose gratuity will be of no advantage to the Debitor, July 2. 1625.

Observ. 5. That by this Act, what is pay'd to the Superiour bears Annualrent, as do the necessary Expences; but it may be doubted, if Annualrent be due for Sheriff-fees.

Observ. 6. That Comprisings are not to run against Minors, but that it is lawful for the Minor at any time within the age of twen∣ty five years to Redeem, which priviledge was found not only to be due to Minors when the Comprising is led against themselves; but even when a Minor has right to the legal Reversion, he being himself a second Compriser; for even in that case, a Minor ha∣ving led a Comprising may be prejudged as well as the Minor against whom the Comprising is led, there being the same parity of reason in both; and though this be not clear by the first words of the

Exception: Yet it is clear by these words, And that notwith∣standing of the preceeding Laws and Practiques of this Kingdom, by the which, the Legal Reversion of the Comprised Lands expired within seven years after the leading of the Comprising, from the which His Majestie and Estates hath by this present Act and Statute ex∣cepted Minors in all time coming, declaring the same no wayes to run against them.

Observ. 7. That because this Act appointed only the superplus of the Mails and Duties, which exceeded the annualrent to be imputed in the payment of the principal sum, during the seven years of the Legal, but did not expresly extend this to the case of Minority; Therefore it was found that Minors not Redeeming within the seven years, the Compriser had from the expiring of the seven years, the whole Rent of the Land for payment of his Annualrent, without imputing the superplus in payment of the principal sum, because the Act Corrected only that Custom, quo∣ad the Legal, & leges correcti•••••• non extendi debent ultra verba di∣recta & expressa, February 22 1639. and therefore by the 10 Act Par. 1 Sess. 3 Ch. 2. This Decision was Corrected, and it was by that Act ordain'd, that Comprisers should impute the superplus of the Rent, beyond the Annualrent, for payment of the Principal sum, not only during the Legal, but during the whole course of the Minority.

THis Act extends all the priviledges granted to Minors in Comprisings to Minors against whom Adjudications are led:* 1.401 And from this it would seem to follow argumento hujus legis, that whatsoever is competent in Adjudications, is not Competent in Comprisings, for else this Act had been needless; and the Lords would not extend the priviledges of the one to the other in many other cases, and so would not allow the Superiour to get a years Du∣ty, because the immediat preceeding Act did allow Comprisd Lands to be Redeemable upon the payment of the sums Compris'd for, and a years Rent for their Entry: But in this Act of Adju∣dication, there is no mention of a years Duty, and which there∣fore was thought to be of purpose omited, and so needed a new Law, notwithstanding of the parity of Reason, whereupon a new Law was made, viz. the Act 18 Par. 2 Ch. 2. Whereby not on∣ly the Superiour is ordain'd to have a years Duty; but its expresly Declar'd, That in all Cases relating to Superiours, Adjudications shall be in the same condition with Comprisings, and consequentially to this last Act, it was found that the Superiour might at his op∣tion, either Enter the Adjudger, or pay the Sums for which the Adjudication was led, since the Act of Par. Ja. 3 Par. 5 and Act 37. Appoints this in Comprisings, June 10. 1671. Scot of Thirlestoun contra the Lord Drumlanrig: As also upon the same Reason, the Lords found that the Superiour was bound to receive the Adjudg∣er, though he could not produce his Authors Rights, Debitors ab∣stracting

their Writs, because Comprisers are not bound to pro∣duce, February 9. 1667. Ramsay contra Ker.

Nota, That Comprisers intrometting, are lyable for their intro∣missions with the Victual, according to the Sheriffs Fiars, and not according to the Commissars; not only because the Commis∣sars Fiars are made only to Regulat Prices betwixt Tutors and Pu∣pils, and in other Consistorial Cases; but because this Act sayes, as the samine were commonly Sold between Yuil and Candlmas, in the Sheriffdom where the Lands ly.

THough regularly Infeftments upon Comprisings and Adju∣dications, ought to be perfected by appending the Great-Seal,* 1.402 yet an Extract of the Debitors Infeftment under the Privy-seal, is here Declar'd equivalent in so far as concerns the Debitors Heirs, because it is presumable that the Debitor has destroy'd or Abstracted the Writs of the Lands Compris'd from him.

Quaritur, Whether this Act should be extended to Adjudications, since they are not mention'd here in the very next Act to the Act anent Adjudications.

THis Act allowing Bishops to Feu out their Ward-Lands,* 1.403 is but Temporary for three years, and so is expir'd, because not renew'd, and consequently Bishops have not leave to Feu out their Ward-lands now.

AS Ministers Gleibs were to be Tiend-free, so ought the Soums Grass that is allow'd to Ministers in place of Gleibs,* 1.404 be Tiend-free.

The Reason given by this Act, is, because the same is dedicat∣ed and appointed ad pios usus, which is no adequat, and suffici∣ent Reason, since Lands mortifi'd to Hospitals, are destinat ad pios usus, and yet are not Tiend-free, that being a special privi∣ledge only granted by the Pope to the Coelestines, or Cisterti∣ans, and some few other Orders; but ordinarly Hospitals and others are free from Taxations, as Act 1 and Act 15 Par. 1 Ch. 1.

BY the 2 Act Par. 22 Ja. 6. Deans and Chapters were Restor∣ed;* 1.405 but by this Act all the Offices and Dignities of the Chap∣ter are likewise Restor'd, and it is declar'd, That all Deeds done since the date of that Act, or to be done thereafter, whereby any Member of a Cathedral Kirk, being an Office or Dignitie, hath, or shall be supprest, or any Land Parsonage, Vicarage, or other Li∣ving, belonging to the said Dignity, dissolved from the same with∣out express Warrand from His Majesty and Parliament, shall be null.

For understanding this Act, it is fit to know that in every Bi∣shoprick there are several Dignities, allow'd by the Canon Law; by which Law, the Word Dignity is either taken largely, so as to comprehend all Ecclesiastical Dignities, as in cap. denique dist 4. But properly it imports administrationem Ecclesiasticam cum honore vel jurisdictione conjunctam, Gl••ss. in cap. 1. de consuetud. in 6. and generally, all such to whom the Cognition of Causes could be de∣legated, were accounted Ecclesiastick Dignities, cap. cum olim de offic. legat.

There are in every Chapter, and Bishoprick with us some of those Dignities, but of a different Rank and Jurisdiction, not on∣ly from those in the Canon Law, but the Dignities in our own Bishopricks differ from one another, though all of them agree in this, that those Dignities which were appointed at the foundation of the Bishopricks continue to this day, and the foundations are the Rule, and are very different.

The ordinary Dignities common to all, are the Dean, the Arch-dean, the Chanter, the Chancellour, and the Thesaurer.

The Office of the Dean has been fully Explain'd in the Act 2 Par. 22 Ja. 6.

The Arch-deacon (call'd improperly by us Arch-dean) is the Archidiaconus of the Canon Law, who though they be inferiour to Deans, yet they are in effect the Bishops Vicar, and have the Chief Jurisdiction next to him; being in the Canon Law oculus Episcopi, their Office in that Law was to examine such as were pre∣sented to the Bishop, and to put them in possession of their Bene∣fice after their admission; as also, to visit the Diocy every three year, if the Bishop be not present, and to oversee the Manners and Living of the Clergy.

The Chanter is in the Canon Law called Primicerius, because he is first of the Order of the Singers; and by the Greek Church 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 his employment was to oversee such as sung and read in the Church; and with us the Sub-chanter is a dignity called Succentor in the Canon Law, and that likewise he was allow'd a dignity by the Canon Law is clear, Innocent cap. 3. inter dilectos de excess. prael.

The Chancellor was so called, because he kept the Seal of the Church, Cujac. ad tit. ut Eccles. bon. sine diminut. conserv. he was likewise Superviser of the Bibliotheck of Schools, and of these who taught the Clergy, cap. penult. & ult. de translat. Epis. & cap. veniens de reg. & trans. ad monast.

In England the Chancellor is in effect a Church-Lawyer, who judges for the Bishop through the whole Diocy, and is universal Commissary; whereas these only are called Commissars by that Law to whom the judging in particular Places or Cases is commit∣ted: But with us the Chancellor is still a Church-man, and the Province of Saint Andrews has its Chancellor as well as the special

Bishopricks, the Bishop of Edinburgh being the Chancellor of the Province of Saint Andrews.

The Thesaurer is he who did oversee the Thesaury, and all things else belonging to the Church, who in the forecited cap. cum olim, is accounted to have Ecclesiastick Dignity.

It is observ'd by Bengeus, de beneficiis Ecclesiasticis, Renat. Chopin. and other Canonists, that both the Jurisdiction and Precedency amongst those Dignities, is now consuetudinary, and alter'd much according to the custom of the several Places; and it is so with us where they are regulated according to the special Foundations or Custom, if these be wanting or lost.

THis Act is Explain'd in many other Acts concerning the pri∣viledge of Burghs Royal.* 1.406

THis Act is formerly Explain'd in Act 47. Parl. 11. Ja. 6.* 1.407

BY this Act all playing at Cards or Dice in any Inn or Ale-house is discharg'd under the pain of fourty Pounds,* 1.408 and all playing at Cards or Dice even in privat Houses is forbidden, except where the Masters of the Families play; and all playing at Cards and Dice, even though the Master play; and all Horse-Races are so far restrain'd, that the Gainer cannot have Action for any thing he wins above an hundred Merks: But yet it was found that the Loser is still lyable in payment, and therefore the Kings Advocat was found to have interest to compear, and crave the Money to be consign'd, November 12. 1668. Park contra Somervel. Where it was debated if this was vitium reale, and might be taken from an Assigney, though he knew not how the Money was dew, for else this Act might be eluded, by filling up the name of an Assigney.

By the Civil Law, Tit. 43. lib. 3. l. 1. Cod. de aleatoribus, he that is over∣come at such Games is not oblig'd to pay, and though he pay, he, or his heirs have repetition; and by the Canon Law, Church-men who use such Games cannot be promoted to Benefices, cap. 11. de excess prelat. but yet wagering seu sponsio was by that Law allowed, l. 17. §. ult. ff. de prescript. verb. and so our Horse-races were not condemn'd by that Law, though they are by ours; for that Law did think that, nullam turpitudinem continet in se spo•• sio; nam inde rixae oriri non solent; but our Law did condemn Horse-Races, because they occasion'd great Idleness and Expence: This Act is still exactly ob∣serv'd, but is not extended to other Wagers, such as that Ships will arrive at such a day, or in such a place, which was not found to fall under this Act, which speaks only of Cards, Dice, and Horse-Races; it seems that this Act would not be extended to any other Game ex paritate rationis; but yet I find that by the late Decisions of most Nations, these are not sustain'd tanquam otiosi & aleatorii

contractus qui nihil in se continent praeter inanem animorum con∣certationem, Stockman. decis. 134. Molin. tract. de usur. quest. 3. num. 97.

By the Civil Law likewise, though wagering was allow'd, yet where either of the Parties did certainly know the thing whereupon he wa∣gered, but conceal'd his knowledge; as for instance, if a man should wager that such a man should be dead before a year elapsed, and that he knew him to be already dead, the Law would not allow Action up∣on that Wager, because in effect that were to cheat, and accordingly our Courts in Scotland have most justly decided.

Wagers likewise upon the deaths of Princes are discharg'd as giving occasion of jealousie; as also Wagers concerning the event of Publick Undertakings for the good of the Countrey, such as the success of Arms, &c. and that, lest men should be tempted, either to wish the Armies of their native Country not to prosper, or to reveal their Secrets to the end they may not prosper, vid. Zipeum in not. juris belli, lib. 3. in fin. there is such an Act as ours made by Lewis 13. of France amongst his Statutes, cap. 138. & seq.

* 1.409THis Act is fully Explain'd in Act 200. Parl. 14. Ja. 6.

* 1.410THis Act is fully Explain'd in the 114 Act Par. 11 Ja. 6.

THis Act Discharging that a Peck should be taken to the Boll, though with consent of Parties,* 1.411 was made to prevent extorti∣on, upon the same Ground that Usury is Discharg'd; but yet it not having been observ'd for a long time, the Council stopt a Gift that was granted thereof, as to bygones, till His Majesty should be acquainted.

THis Act concerning Dispositions made by Bankrupts, is fully Ex∣plained by me,* 1.412 in a Treatise a-part already Printed upon this single Act.

THis Act Regulating the Prices of all Writs and Seals, is for the most part either in Desuetude,* 1.413 or is innovated by the 16 Act Sess. 3 Par. 2 Ch. 2. Wherein new Regulations are set down; and from this Act it is observable, that the Secret Council may make prices in all such Cases; for this Act Ratifies only their Act; and though the Act Ratifi'd bear, this Act to have been made by the Secret Council and Session; yet the Act of Parliament which does Ratifie that Act, Ratifies it only as an Act of Pri∣vy Council, and so insinuats that the Privy Council hath power to Regulate both the price of Session, and Exche∣quer.

These Regulations of Prices in our Law, are like to the notiti•••• mentioned, Cod. de ann. & cap. lib. 1. Tit. 52. quae singulis offi••iis delegabantur quibus continebatur quantum singuli pro dignitate & ••fficio pro libellis mandatis codicillis accipiendis vel insinuandis pen∣dere quantum pro annona & capite accipere deberent.

FOr understanding this Act, it is fit to know that Annual∣rents are only due by our Law, either by Statute,* 1.414 or Paction, so that regularly they are not due other∣wise.

They are due by Statute, either by the Act of Sederunt▪ 1613. appointing, That where Cautioners are distressed, and forced to pay, they shall have Annualrent from the Term that they pay, though the Bond wherein they are Cautioners bear none; yet this is in effect ex pacto, because it arises from the Clause of Relief, this being a Damnage incur'd by them, or by this Act of Parliament, by which Annualrents are due, after the Party is Denunc'd, though the Bond whereupon he is Denunc'd, bear no Annual∣rent, upon the same ground that in the Civil Law usurae debentur ex mora in bonae fidei contractibus, l. 32. §. 2. ss. de usuris: So that as by the Civil Law they were due ex pacto vel ex mora; they are due only with us ex pacto vel ex lege, which is the same thing almost, since lex in hoc casu apud nos sundatur in mora; for though there may be mora sine usuris, yet by this Act there are never usurae sine mora: But this Denun∣ciation must be at the Head Burgh of the Shire where the Debitor lives: Denunciations at the Mercat Cross of Edinburgh, being a Warrand only for Caption, but not inferring Annualrent, which may seem strange, since Annualrents are by this Act infer'd after Denunciation, because of the Debitors negli∣gence; but the reason of the Decision is, that the Lords thought the Debitors did not know exactly when they were Denunc'd at Edinburgh; but it has been found that the Debitor is lyable in Annualrent, after he is Denunced at the Head Burgh of the Shire, though the Horning be not Registrated, since the Act only appointed Denunciation; and yet there can be no Caption till the Horning and Executions be Registrated; and thus it is clear that Caption, and Payment of Annualrents are very diffe∣rent effects of a Horning, since sometimes Caption will fol∣low where Annualrent cannot, and sometimes Annualrent will follow, where Caption cannot, February 11. 1673. Smith contra Wauch.

Annualrents are sometimes due, without either express Law, or Paction, because of the tacite, and presumable consent of the Party; as if a Party pay Annualrent for one Term, or if he promise to pay bygone Annualrents, though he promise not for the future; yet January 13. 1669. Hume contra Seaton The Lords found that he ought to pay constantly Annualrent for the future, though the ob∣ligation

did bear no Annualrent: or from the Principles of Na∣tural Equity, as in the price of Lands, which pay Annualrent, though none be pactioned, because the Buyer has the Rents of the Lands: Or in Tochers, because they are given ad sustinen∣da onera matrimonii, and the Husband intertains the Wife: Or where the sum is ordain'd to bear Annualrent after her Mar∣riage, to whom it is left quo casu, before Marriage the Lords found that Annualrent was due, since matrimonia debent es∣se libera; but yet regulariter, annualrent is not due in cases ali∣mentary. And a Father providing his Daughter to a Sum for her Portion, without mentioning any thing of annualrent; the Lords would not decern annualrent, though annualrent was only said to be omitted there, through the igno∣rance of the Notar; but because of the presum'd will of the Fa∣ther, they modifi'd the aliment equal to the annualrent: But so unfavourable are usurae usurarum, call'd usurae ju∣daicae by the Doctors of the Civil Law, that an obligation to pay annualrent for annualrent, if it were not pay'd at the Term, was not sustain'd, though it was alleadg'd that here pactum & mo∣ra, were joyn'd with Equity, the Woman to whom they were due, being a poor Widow, who behov'd to borrow Mo∣ney to live upon, if her annualrent were not pay'd, and to pay annualrent for that Money, which she so borrow'd, Ja∣nuary 26. 1669. Lady Braid contra the Earl of Kinghorn. It is fit to know that the Statute 2. Robert 3. appointing annual∣rents not to run against Minors, is now in Desuetude, though it would seem reasonable, that their mora should not prejudge them; but Minors Money do still bear annualrent by our Law.

The King uses to pay Annualrents for the ballance of his accounts de facto, but is not oblig'd thereto by Law.

* 1.415THis Act is Explain'd, Crim. pract. tit. Falshood.

* 1.416NOta, That Usury is excepted from this Commission to uplift Money, due by penal Statutes, &c. Ergo, Acts against Usu∣ry seem penal Statutes. It is observable, that though by this Act it be Declar'd, That Commissions for penal Statutes be not put to Execu∣tion, till they be authoriz'd by the Lords of Secret Council; yet this is too much in Desuetude; but the Lords of Secret Council do use to Discharge them, till they acquaint the King.

* 1.417THe Laws of the twelve Tables, contain'd several Sumptuary Laws, though there was then little Luxury, and particular∣ly at Burials: and Saint Chrisostom condemns feign'd Mourners,

whom we call Saulies, because they pray for the Souls of the Dead. Vid. 14 Act Par. 3 Ch. 2.

THis Act appointing Houses in Edinburgh to be Sklated, and Let∣ters of Horning to be direct to that effect;* 1.418 shews that the Parliament may Dispose upon privat Estates, ob bonum publicum, vid. Act 6 Par. 1 Sess. 3 Ch. 2. It may be argu'd from this Act, That if the Town of Edinburgh could have made such Acts by their own authority, this Act had been needless.

THis Act is Explain'd in the 106 Act Par. 7 Ja. 5.* 1.419

THis Act is Explain'd, crim. pract. tit. Usury.* 1.420

THis Act discharges any man to Hunt or Hauk at any time,* 1.421 who hath not a Plough of Land in Heretage, under the pain of an hundred pounds, but it is now in Desuetude.

Notes

• * 1.1

  ACT 1.
• * 1.2

  ACTS 3, 4, 5, 6
• * 1.3

  ACT 7.
• * 1.4

  ACT 8.
• * 1.5

  ACT 10.
• * 1.6

  ACT 12.
• * 1.7

  ACT 13.
• * 1.8

  ACT 14.
• * 1.9

  ACT 17.
• * 1.10

  ACT 18.
• * 1.11

  ACT 19.
• * 1.12

  ACT 20.
• * 1.13

  ACT 21.
• * 1.14

  ACT 23.
• * 1.15

  ACT 27.
• * 1.16

  ACT 28.
• * 1.17

  ACT 29.
• * 1.18

  ACT 31.
• * 1.19

  ACT 33.
• * 1.20

  ACT 34.
• * 1.21

  ACT 36.
• * 1.22

  ACT 37.
• * 1.23

  ACT 38.
• * 1.24

  ACT 39.
• * 1.25

  ACTS 41, 42, 43.
• * 1.26

  ACTS 44, 45, and 46.
• * 1.27

  ACT 48.
• * 1.28

  ACT 49.
• * 1.29

  ACT 51.
• * 1.30

  ACT 52.
• * 1.31

  ACT 53.
• * 1.32

  ACT 54.
• * 1.33

  ACT 55.
• * 1.34

  ACT 56.
• * 1.35

  ACT 57.
• * 1.36

  ACT 58.
• * 1.37

  ACT 62.
• * 1.38

  ACT 63.
• * 1.39

  ACT 64.
• * 1.40

  ACT 65.
• * 1.41

  ACT 66.
• * 1.42

  ACT 67.
• * 1.43

  ACT 69.
• * 1.44

  ACT 70.
• * 1.45

  ACT 71.
• * 1.46

  ACT 72.
• * 1.47

  ACT 74.
• * 1.48

  ACT 75·
• * 1.49

  ACTS 76,
• * 1.50

  ACT 77.
• * 1.51

  ACT 79.
• * 1.52

  ACT 80.
• * 1.53

  ACT 81.
• * 1.54

  ACT 82.
• * 1.55

  ACT 83.
• * 1.56

  ACT 87 88.
• * 1.57

  ACT 89.
• * 1.58

  ACT 90.
• * 1.59

  ACT 91.
• * 1.60

  ACT 92.
• * 1.61

  ACT 93.
• * 1.62

  ACT 94.
• * 1.63

  ACT 95.
• * 1.64

  ACT 100.
• * 1.65

  ACT 101.
• * 1.66

  ACT 112.
• * 1.67

  ACTS 113, 114.
• * 1.68

  ACT 115.
• * 1.69

  ACT 117.
• * 1.70

  ACT 118.
• * 1.71

  ACT 119▪
• * 1.72

  ACT 119.
• * 1.73

  ACT 120.
• * 1.74

  ACT 121.
• * 1.75

  ACT 123.
• * 1.76

  ACT 124.
• * 1.77

  ACT 125.
• * 1.78

  ACT 126.
• * 1.79

  ACT 129.
• * 1.80

  ACT 130.
• * 1.81

  ACT 131.
• * 1.82

  ACT 132.
• * 1.83

  ACT 133.
• * 1.84

  ACT 134.
• * 1.85

  ACT 135▪
• * 1.86

  ACT 136.
• * 1.87

  ACT 137.
• * 1.88

  ACT 138.
• * 1.89

  ACT 139.
• * 1.90

  ACT 140.
• * 1.91

  ACT 141.
• * 1.92

  ACT 142.
• * 1.93

  ACT 1.
• * 1.94

  ACT 2▪
• * 1.95

  ACT 3.
• * 1.96

  ACT 4.
• * 1.97

  ACT 7.
• * 1.98

  ACT 8.
• * 1.99

  ACT 10.
• * 1.100

  ACT 11.
• * 1.101

  ACT 12.
• * 1.102

  ACT 13.
• * 1.103

  ACT 14.
• * 1.104

  ACT 15.
• * 1.105

  ACT 16.
• * 1.106

  ACT 17.
• * 1.107

  ACT 18.
• * 1.108

  ACT 19.
• * 1.109

  ACT 20.
• * 1.110

  ACT 22.
• * 1.111

  ACT 24.
• * 1.112

  ACT 25.
• * 1.113

  ACT 26.
• * 1.114

  ACT 27.
• * 1.115

  ACT 29.
• * 1.116

  ACT 31.
• * 1.117

  ACT 33.
• * 1.118

  ACT 35.
• * 1.119

  ACT 36.
• * 1.120

  ACT 37.
• * 1.121

  ACT 38.
• * 1.122

  ACT 39.
• * 1.123

  ACT 40.
• * 1.124

  ACT 41.
• * 1.125

  ACT 42.
• * 1.126

  ACT 43.
• * 1.127

  ACT 44.
• * 1.128

  ACT 45.
• * 1.129

  ACT 46.
• * 1.130

  ACT 47.
• * 1.131

  ACT 48.
• * 1.132

  ACT 49.
• * 1.133

  ACT 50.
• * 1.134

  ACT 51.
• * 1.135

  ACT 52.
• * 1.136

  ACT 54.
• * 1.137

  ACT 55.
• * 1.138

  ACT 58.
• * 1.139

  ACT 59.
• * 1.140

  ACT 60.
• * 1.141

  ACT 61.
• * 1.142

  ACT 62.
• * 1.143

  ACT 63.
• * 1.144

  ACT 64.
• * 1.145

  ACT 65.
• * 1.146

  ACT 67.
• * 1.147

  ACT 68.
• * 1.148

  ACT 69.
• * 1.149

  ACT 70.
• * 1.150

  ACT 71.
• * 1.151

  ACT 72.
• * 1.152

  ACT 73.
• * 1.153

  ACT 74.
• * 1.154

  ACT 75.
• * 1.155

  ACT 76.
• * 1.156

  ACT 78.
• * 1.157

  ACT 79.
• * 1.158

  ACT 80.
• * 1.159

  ACT 81.
• * 1.160

  ACT 82.
• * 1.161

  ACTS 83, 84.
• * 1.162

  ACT 85.
• * 1.163

  ACT 86.
• * 1.164

  ACT 87.
• * 1.165

  ACT 88.
• * 1.166

  ACT 89.
• * 1.167

  ACT 90.
• * 1.168

  ACT 91.
• * 1.169

  ACT 92.
• * 1.170

  ACT 93.
• * 1.171

  ACT 98.
• * 1.172

  ACT 99.
• * 1.173

  ACT 100.
• * 1.174

  ACT 101.
• * 1.175

  ACT 102.
• * 1.176

  ACT 103.
• * 1.177

  ACT 104, 105
• * 1.178

  ACT 107.
• * 1.179

  ACT 108.
• * 1.180

  ACT 110.
• * 1.181

  ACT 111.
• * 1.182

  ACT 112.
• * 1.183

  ACT 113.
• * 1.184

  ACT 114.
• * 1.185

  ACT 114.
• * 1.186

  ACT 115.
• * 1.187

  ACT 116.
• * 1.188

  ACT 117.
• * 1.189

  ACT 118.
• * 1.190

  ACT 119.
• * 1.191

  ACT 120.
• * 1.192

  ACT 121.
• * 1.193

  ACT 122.
• * 1.194

  ACT 124.
• * 1.195

  ACT 125.
• * 1.196

  ACT 126.
• * 1.197

  ACT 127.
• * 1.198

  ACT 128.
• * 1.199

  ACT 129.
• * 1.200

  ACT 130.
• * 1.201

  ACT 131.
• * 1.202

  ACT 132.
• * 1.203

  ACT 133.
• * 1.204

  ACT 135.
• * 1.205

  ACT 137.
• * 1.206

  ACT 138.
• * 1.207

  ACT 139.
• * 1.208

  ACT 140.
• * 1.209

  ACT 141.
• * 1.210

  ACT 143.
• * 1.211

  ACT 144.
• * 1.212

  ACT 145.
• * 1.213

  ACT 146.
• * 1.214

  ACT 147.
• * 1.215

  ACT 148.
• * 1.216

  ACT 149.
• * 1.217

  ACT 150.
• * 1.218

  ACT 151.
• * 1.219

  ACT 152.
• * 1.220

  ACT 153.
• * 1.221

  ACT 154.
• * 1.222

  ACT 155.
• * 1.223

  ACT 155.
• * 1.224

  ACT 156.
• * 1.225

  ACT 157.
• * 1.226

  ACT 158.
• * 1.227

  ACT 159.
• * 1.228

  ACT 160.
• * 1.229

  ACT 161.
• * 1.230

  ACT 162.
• * 1.231

  ACT 164.
• * 1.232

  ACT 166.
• * 1.233

  ACT 167.
• * 1.234

  ACT 168.
• * 1.235

  ACT 169.
• * 1.236

  ACT 170.
• * 1.237

  ACT 172.
• * 1.238

  ACT 173.
• * 1.239

  ACT 174.
• * 1.240

  ACT 175.
• * 1.241

  ACT 176.
• * 1.242

  ACT 177.
• * 1.243

  ACT 178.
• * 1.244

  ACT 179.
• * 1.245

  ACT 180.
• * 1.246

  ACT 181.
• * 1.247

  ACT 182.
• * 1.248

  ACT 183.
• * 1.249

  ACT 184.
• * 1.250

  ACT 185.
• * 1.251

  ACT 187.
• * 1.252

  ACT 189.
• * 1.253

  ACTs 190, & 191.
• * 1.254

  ACT 193.
• * 1.255

  ACT 194.
• * 1.256

  ACT 195.
• * 1.257

  ACT 196.
• * 1.258

  ACT 197.
• * 1.259

  ACT 198.
• * 1.260

  ACT 199.
• * 1.261

  ACT 200.
• * 1.262

  ACTS 201, & 202.
• * 1.263

  ACT 203.
• * 1.264

  ACT 204.
• * 1.265

  ACT 205.
• * 1.266

  ACT 206.
• * 1.267

  ACT 207.
• * 1.268

  ACT 209.
• * 1.269

  ACT 210.
• * 1.270

  ACT 212.
• * 1.271

  ACT 213.
• * 1.272

  ACT 214.
• * 1.273

  ACT 215.
• * 1.274

  ACT 216.
• * 1.275

  ACT 217.
• * 1.276

  ACT 218.
• * 1.277

  ACT 219.
• * 1.278

  ACT 220.
• * 1.279

  ACT 226.
• * 1.280

  ACT 227.
• * 1.281

  ACT 231.
• * 1.282

  ACT 232.
• * 1.283

  ACT 233.
• * 1.284

  ACT 234.
• * 1.285

  ACT 235.
• * 1.286

  ACT 236.
• * 1.287

  ACT 237.
• * 1.288

  ACT 238.
• * 1.289

  ACT 239.
• * 1.290

  ACTS 240, 241 & 242.
• * 1.291

  ACT 243.
• * 1.292

  ACT 244.
• * 1.293

  ACT 245.
• * 1.294

  ACT 246.
• * 1.295

  ACT 247.
• * 1.296

  ACT 248.
• * 1.297

  ACT 249.
• * 1.298

  ACT 250.
• * 1.299

  ACT 251.
• * 1.300

  ACT 252.
• * 1.301

  ACTS 255, 256, & 257.
• * 1.302

  ACT 253,
• * 1.303

  ACT 262.
• * 1.304

  ACT 263.
• * 1.305

  ACT 264.
• * 1.306

  ACT 265.
• * 1.307

  ACT 266.
• * 1.308

  ACT 267.
• * 1.309

  ACT 268.
• * 1.310

  ACT 269.
• * 1.311

  ACT 270.
• * 1.312

  ACT 271.
• * 1.313

  ACT 272.
• * 1.314

  ACT 273.
• * 1.315

  ACT 274.
• * 1.316

  ACT 275.
• * 1.317

  ACT 276.
• * 1.318

  ACT 277.
• * 1.319

  ACT 1.
• * 1.320

  ACT 2.
• * 1.321

  ACT 3.
• * 1.322

  ACT 4.
• * 1.323

  ACT 5.
• * 1.324

  ACT 6.
• * 1.325

  ACT 10.
• * 1.326

  ACT 11.
• * 1.327

  ACT 12.
• * 1.328

  ACT 13.
• * 1.329

  ACT 14.
• * 1.330

  ACT 15.
• * 1.331

  ACT 17.
• * 1.332

  ACT 18.
• * 1.333

  ACT 19.
• * 1.334

  ACT 20.
• * 1.335

  ACT 22.
• * 1.336

  ACT 23.
• * 1.337

  ACT 24.
• * 1.338

  ACT 25.
• * 1.339

  ACT 26.
• * 1.340

  ACT 27.
• * 1.341

  ACT 28.
• * 1.342

  ACT 1.
• * 1.343

  ACT 2.
• * 1.344

  ACT 3.
• * 1.345

  ACT 4.
• * 1.346

  ACT 5.
• * 1.347

  ACT 7.
• * 1.348

  ACT 9.
• * 1.349

  ACT 10.
• * 1.350

  ACT 11.
• * 1.351

  ACT 12.
• * 1.352

  ACT 13.
• * 1.353

  ACT 14.
• * 1.354

  ACT 15.
• * 1.355

  ACT 17.
• * 1.356

  ACT 18.
• * 1.357

  ACT 1.
• * 1.358

  ACT 2.
• * 1.359

  ACT 3.
• * 1.360

  ACT 8.
• * 1.361

  ACT 1.
• * 1.362

  ACT 2.
• * 1.363

  ACT 3.
• * 1.364

  ACT 6.
• * 1.365

  ACT 8.
• * 1.366

  ACT 9.
• * 1.367

  ACT 10.
• * 1.368

  ACT 11.
• * 1.369

  ACT 12.
• * 1.370

  ACT 13.
• * 1.371

  ACT 14.
• * 1.372

  ACT 15.
• * 1.373

  ACT 1.
• * 1.374

  ACT 2.
• * 1.375

  ACT 4.
• * 1.376

  ACT 5.
• * 1.377

  ACT 6.
• * 1.378

  ACT 7.
• * 1.379

  ACT 8.
• * 1.380

  ACT 1.
• * 1.381

  ACT 2.
• * 1.382

  ACT 3.
• * 1.383

  ACT 4.
• * 1.384

  ACT 5.
• * 1.385

  ACT 6.
• * 1.386

  ACT 7.
• * 1.387

  ACT 8.
• * 1.388

  ACT 12.
• * 1.389

  ACT 13.
• * 1.390

  ACT 14.
• * 1.391

  ACT 15.
• * 1.392

  ACT 16.
• * 1.393

  ACT 17.
• * 1.394

  ACT 18.
• * 1.395

  ACT 20.
• * 1.396

  ACT 21.
• * 1.397

  ACT 22.
• * 1.398

  ACT 1.
• * 1.399

  ACT 5.
• * 1.400

  ACT 6.
• * 1.401

  ACT 7.
• * 1.402

  ACT 8.
• * 1.403

  ACT 9.
• * 1.404

  ACT 10.
• * 1.405

  ACT 11.
• * 1.406

  ACT 12.
• * 1.407

  ACT 13.
• * 1.408

  ACT 14.
• * 1.409

  ACT 15.
• * 1.410

  ACT 16.
• * 1.411

  ACT 17.
• * 1.412

  ACT 18.
• * 1.413

  ACT 19.
• * 1.414

  ACT 20.
• * 1.415

  ACT 22.
• * 1.416

  ACT 23.
• * 1.417

  ACT 25.
• * 1.418

  ACT 26.
• * 1.419

  ACT 27.
• * 1.420

  ACT 28.
• * 1.421

  ACT 31.