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. CHARLES I. Parliament I.

KING CHARLES the First having come to Scotland to be Crown'd, in anno 1633. The Parliament does by this Act, grant Him, not only a Sub∣sidie upon the Land-rent; bu•• likewise the sixteen penny of all Annualrents, the Annualrent being then at ten in the hun∣dred; but because the Annual∣rent was thereafter brought down from ten to six: There∣fore by the 49 Act Par 1 Ch. 2. It is Declar'd, that the said six of the hundred, shall be free of all Retention, and other publick Bur∣dens whatsoever.

There is no Immunity allow'd by this Act, to any from this Taxation, save the ordinary Lords of the Session, and Mortifica∣tions to Universities, Colledges, and Hospitals; and this was the first time the Lords were separated from the Advocats, and other Members of the Colledge of Justice: and yet by the 23 Act of this Parliament, all the Immunities and Priviledges that ever were granted to the Colledge of Justice, are Ratifi'd; and though it may seem that this Act being posterior, derogats from the former, yet specialia semper derogant a generalibus.

By this Act likewise, the Lords of Erection are to be Taxed in the same way that they were before the Erection.

THis Act is but a continuation of the first Act, and shews the way of uplifting the Taxation thereby given.

THe Parliament having granted by the 8 Act Par 20 Ja. 6. Power to the King to appoint Apparel for Judges and others, because that Act was but Temporary; they by this Act continue the same to Our Soveraign Lord and His Successors, who now is; which cer∣tainly is wrong Printed, and Reads ill, for the words should run, Our Soveraign Lord that now is and His Successors.

Observ. 1. That Acts referring any thing to the Kings Majesty, and not mentioning His Successors, are but Temporary, else this Act had been needless.

Obs. 2. That these erre who think the Parliament cannot delegat their Power; for in the former Act and this, it is clear that the Parliament did delegat this Power; and it is Declar'd that the Kings Letter, Regu∣lating this affair, shall be equivalent to an Act of Parliament; and this same Parliament 1633. did grant a Commission to Revise the Laws, and did Declare, that what they did should have the force of Laws without Reporting to the Parliament: and the Lords of Articles, anno 1681. Did grant a Commission, with a Parliamentary Power to some to Revise the Earl of Argiles Rights, and the Commission of Teinds is of the same Nature.

THere having been great Debates in anno 1633. concerning the securing the Protestant Religion, it was at last agreed, that the old Acts made by King James, were in themselves sufficient; and the best that could be fallen on, as being made when there were greatest fears of Popery, and by the help of which, the Prote∣stant Religion grew to the consistency it is now at; and therefore the Parliament acquiesced in this short Act, Ratifying in general the former Acts made for securing the Religion, Vid. Act 1 Par. 3 Ch. 2.

THe former Parliaments which had determined Ministers Sti∣pends, forgot to provide School-masters; and therefore the Privy Council did provide them by an Act of Council; and though it may seem strange, that the Privy Council could impose a burden, though for a just Cause, yet that their Act is here ap∣prov'd, and the Secret Council are made Judges to all Processes concerning School-masters dues, though now the Lords of the Session are the only Judges; nor are there any such Processes intented be∣fore the Privy Council.

Since by this Act the Planting of Schools is refer'd to the Bishop with the consent of the Heretors, and most part of the Paroch, it would appear that they, and not the Kirk-session where they live, should have the placing of them: and albeit it be alleadg'd that the School-master of the Paroch is by the 17 Act Par. 3 Sess. 5 Ch. 〈◊〉〈◊〉 To be Clerk to the Kirk-session, and therefore they should have

the chief interest; Yet this consequence is not sufficient, and the Act whereupon it is founded, is likewise abrogated: This is con∣form to the Reform'd Church of Saxonie, wherein cura scola∣rum pastoribus, ac superintendenti commissa est Carpz, lib. 1. tit. def. 77.

BY this Act all Mortifications by Gift, Legacy, or otherwise, are declar'd not to be alterable to any other use, than the special use to which they were Destinated by the Mortifier; but yet if that use become unlawful ex post facto, so that the persons in whose favours they were Mortifi'd, be dissabled to Possess, I think they should fall to the King, as Caduciary, if the Property has been once Transfer'd, and the person upon whom it was Transfer'd, be∣came thereafter uncapable, for quae sunt nullius sunt Domini Regis, and thus the Mortifications made to Monastries, fell not back to the first Proprietars, or their Heirs, but to the King; But if the Property was never Transfer'd, but before the first acquisition, the person to whom the same was left, was incapable to receive the Right Mortifi'd; as if a Man should leave a Legacy to his Brother, who were a Capushian, whose Monastry, and not him∣self are only capable of Legacies; it seems that if the Mortifier knew, that his Brother was uncapable, and that it would fall to the Monastry, that in that case also, the Mortification should belong to the King, and should not be retained by his Heirs, as a due pu∣nishment of his Fault: But if the Mortifier knew not the same, it were more reasonable to determine, that the Mortifiers Heirs should retain the Right, Vid. Tit. Cod. de caduc. tollend.

Thomas Mudie having left a sum to be employ'd on the build∣ing a Church in the Grass-Mercat of Edinburgh, The Magistrats thereof were upon their Supplication, allow'd to build a Steeple, and buy a Pale of Bells with the Money, because a Church was use∣less wanting a Stipend, though this Act against inverting Pious Do∣nations was objected; for the Parliament thought, that if a Mor∣tification be left, which cannot take place, either because it is against Law, or is useless, the Parliament may allow the same to be ful∣filled by an equipollency, that being more suitable to the design of the Mortifier, and better for the Common-wealth, than if the Mortification should become extinct, which is consonant to the Ci∣vil Law.

George Heriot, having appointed by one of the Statutes of his Hospital, that nothing should be altered, though for the better; and one of the Statutes bearing, none should lodge within the Hos∣pital, save Students; it was doubted, if some un-furnisht Rooms which the Overseers could not furnish for want of Money, might be set out to such as undertook to furnish them, for some few years Tacks! And it was thought that they might, since that was no case which any wise man could think to exclude, if he had had

it under his consideration, and these Rooms might be separated from the Hospital for that time by a VVall.

THe Act here Ratifi'd is the 27 Act Par. 11 Ja. 6. Whereby all such as trouble Ministers for seeking of their Livings, or siklike quarrels, and put violent hand in them, are to be punish'd with the tinsel of their Moveables, albeit no slaughter or mutilation follow; Which Act is here extended to Arch-bishops, Bishops, and all others having power to Preach, and Administrat the Sacraments; From which it is observable, that Acts in favours of Ministers, can not be regu∣larly extended to Bishops, though a Bishop may seem to be a Mi∣nister and more; and because the former Act mentioned only sik∣like quarrels, as for seeking their Stipends, &c. and that this might have been eluded by forg'd pretexts; therefore this Act extends the same to all Invasions: and from both these Cases, it may be urg'd, That Acts of Parliament are stricti juris, and cannot be ex∣tended de casu in casum; else this Act had been unnecessary.

Observe likewise from this Act, a case wherein all Land-lords, Heretors, and Chiefs of Clans, upon whose bounds the Invaders of Ministers stay for ten dayes, the same being intimat to them, are to be punish'd as Connivers; This Act is Ratifi'd by the 5 Act Par. 2 Ch. 2. By which it is further appointed, That if any invade Ministers, either in their Persons, or Goods, not only within their Houses, but Parochs, the Parochioners shall be lyable to pay his Damnage, if they cannot apprehend the Malefactors. The Parlia∣ment there likewise Ratifies two Proclamations of Privy Council, which ordain'd the same thing formerly; and which Ratification is a great proof of the Councils Power, in things relating to the Government.

TEinds are declar'd to be the Patrimony of the Kirk; and there∣fore were not annex'd to the Crown by the 29 Act Par. 11. Ja. 6. But because the leading of other mens Teinds, occasion'd great confusion; therefore in anno 1628. There were three seve∣ral Submissions made, one by the Laick Heretors, a second by the Church-men, and a third by the Burrows, wherein they refer to His Majesty what should be pay'd by every Heretor for his Teinds, to the Titular or Tacks-man; and accordingly His Majesty pronun∣ced three several Decreets, dated in September 1629. Wherein he appointed, that the rate of all Tiends should be the fifth part of the constant Rent of what each Land pay'd in Stock and Tiend, where the same are valu'd joyntly, and where they are valu'd a-part, the rate is according as the same were valu'd by the particular Commission∣ers for Valuation of Teinds, with deduction of a fifth part, call'd, the Kings Ease; and that all Teinds should be bought at nine years pur∣chase, where they consisted in Money; and if they consisted in Victual, that they be first liquidat into Money, and then they should be bought at nine years purchase: And if there were but Temporary Rights, then the price is to be abated; or hight∣ned

proportionally; and the said Teinds being so bought, the He∣tors are to relieve the Titulars of His Majesties Annuity, and Mi∣nisters Stipends pro rata, and in case of wrong done by the Commis∣sion, there is place for appeals left to the Parliament.

The Submission made by the Bishops, did only relate to Teinds, payable to them, whereof they were not presently in Possession; and therefore where any Church-men were presently in Possession of any Tiends, His Majesty by His Decreet Arbitral, did not or∣dain them to sell the same; but they are ordain'd to sell such Tiends as belong to them, that were not in their present Possession, which they were ordain'd to sell at nine years purchase, with deduction always of His Majesties Annuity, forth of the ex••ress of the Bolls and Rents, arising to the Submitters, after the expyring of their present Tacks. The determination upon the Submission of the Burrows, differs nothing from the former two; but that the saids Burrows are to pay the Annuity forth of the superplus of their Tiends, if they should be found to exceed what is due for intertainment of their Ministers, Colledges, Schools, and Hospitals, and the Terms of payment, of what is to be pay'd for these Tiends, is declar'd in all the three Decreets Arbitral, to be betwixt Yule and Candlemass; such likewise as had Church-lands and Tiends, Erected in their fa∣vours, in Temporal Lordships, did grant Commission to surrender their Rights in His Majesties Hand, upon the condition therein ex∣press'd; and therefore by this Act, the Commission granted by His Majesty for providing the Ministers serving the Cure with com∣petent Stipends, is here Ratifi'd, and it is declar'd, That the lowest Stipend shall be eight Chalders of Victual, or proportionally in Silver, except such particular Kirks occur, wherein there shall be good reason to go beneath the same; But it seems that by this Act, they can only go beneath the said quota, where there have already Valuations been led; the reason whereof seems to be, because till a Valua∣tion be led, it cannot be known whether there be more free Tiends in the Paroch, then will amount to eight Chalders Victual: As al∣so, because this High quota was granted to the Minister, in respect of the power granted to the Heretors, to value their own Tiends; therefore, where the Heretors had not taken the benefite of the Valuation, the Minister ought not to have the high Stipend: But yet the Commission for Plantation of Kirks, do use to modi∣fie less Stipends, where it is notour, that the Paroch is not able to bear the same; and that albeit that quota was condescended on in the Commission of Surrenders, and is renew'd in the 19 Act of this Parliament.

By this Act it is likewise declar'd, that where Valuations are lawfuly led against all persons having interest, that the samin shall not be drawn in que∣stion upon the pretence of enorme laesion, at the instance of the Incumbent, not being Titular, or His Majesties Advocat, except in the case of Collusi∣on, which is declar'd to be presumptione juris & de jure, where the

Valuation is led with diminution of the third of the real Rent pre∣sently pay'd, as is clear by the last Paragraph of the ninteenth Act.

THis Act contains that Revocation drawn by Sir Thomas Hope His Majesties Advocat, which is said to be of the things which gave the first rise to our late Troubles; for therein His Majesty, not only Revocks all Alienations of Lands formerly annex'd, and all Rights made to His Castles, Meadows, Woods, and Parks; but His Majesty likewise Revocks all Rights made to any Church-lands, and all Infestments of Erections of Abbacies, Prelacies, &c. Spirituality, or Temporality; and a Reduction of these Rights, was thereupon rais'd: Notwithstanding that by the 2 Act Par. 18 Ja. 6. His Majesty to remove all mistrust, does for Him and His Successors, perpetually Confirm all Erections, Confirmations, Patronages of the saids whole Benefices, and promises in verbo prin∣cipis, never to quarrel the same. But what was done afterwards be∣ing voluntar, and upon the submission of all parties concern'd, did not at all impinge upon the former Statute.

It is likewise declar'd in the end of this Act, that the possession of any thing hereby Revocked, shall not prejudge His Majesty; and therefore it may be urg'd, that fourty years possession of any Lands, or others falling under this Revocation, would not debar the King by Prescription; and yet it was found, That if the King be Denuded in favours of a Donatar: This Revocation does not in∣terrupt Prescription without a Reduction.

THis Act is wrong plac'd, for it should be after the 14 Act; for the Superiorities of Kirk-lands, being by the said 14 Act, Declared to belong to the King; The saids Superiorities are by this Act annex'd to the Crown; but they could not have been annex'd to the Crown, till they were first declar'd to belong to it.

THere is here a Dissolution of the Annexation, made in the for∣mer Act, in which it is Declared, That this Dissolution shall not warrand the Alienation of His Majesties Castles, Woods, Parks, Meadows, and Offices; which is conform to the 235 Act Par. 15 Ja. 6. Whereby all Dispositions of these are declar'd null; and though the Lomonts of Falkland be Dissolv'd particularly by the 19 Act Par. 18 Ja. 6. Yet it is Declar'd particularly in this Act, that they shall remain inseparably with the Crown.

BEcause by the Act of Prescription 1617. It is appointed that such as might be prejudg'd by that Prescription of fourty years run before that Act 1617. might intent Actions within thirteen years after the Date of that Act; and because the King could not intent particular Summons against every person, whose Rights he might challenge; Therefore it is allow'd by this Act, that His Majesty might interrupt the said Prescription by open Proclamati∣on,

at the Mercat Cross of Edinburgh, and other particular Mer∣cat Crosses, where the Lands lye; and at the Mercat Cross of Edin∣burgh, Peer, and Shore of Leith, against such as are out of the Kingdom. But least this interruption might have too much alarm'd the Subjects: It is upon the Kings own Concession declar'd, that the said interruption should be Restric••'d to the annulling of Rights of the annext Property of the Crown, and the un-annex'd; whereof account hath been made in the Exchequer, and of the principality unlawfully Dispon'd by His Majesties Predecessors, against the Laws and Acts then standing, and to the annulling of Erections, and other Dispositions of whatsoever Lands, Tiends, Patronages, and Benefices, formerly belonging to the Kirk, and since annex'd to the Crown, and of any other Lands, or Patro∣nages, which should any way justly belong to the Kirk, or Crown, and of whatsoever Lands and Benefices mortifi'd, and devouted to pious Uses; and of Regalities; and Heretable Offices; and of the change of holdings, from the ancient holding of Ward and Relief, to blench and Taxt Ward, since the year of God 1540. years.

The Earl of Southesk having Right to the Muire of Montromant, as Heretable Forrester, intented a Declarator against the adjacent Heretors, concluding that they should be debar'd from Pasturing therein. Against which it being alleadg'd, 1. That they had pre∣scriv'd the right of Pasturage. It was Reply'd, that the Prescription was interrupted by this Act. To which it being Duply'd, that this edictal Interruption was introduc'd without a Warrant, the Act 1617. having allow'd thirteen years for the Subjects to interrupt, without any Reservation in favours of the King. 2. This is neither His Majesties annext Property, nor is it a part of that un-annext Property, whereof the Ferms, or Feu-duties have been counted for in Exchequer, since the year 1455. and so the interruption which is restricted to these, reaches not to this case. 3. This Pasturage is but a Servitude, and this Interruption ex∣tends only to Alienations, but not to Servitudes, or things of so small moment. To which it was Triply'd, that as to the first, there was no necessity that there should have been a Reservation in favours of the King, by the Act 1617. since the King not being mention'd in the Act, which was the Rule; There was no necessity to re∣serve His Right by way of exception; but this Act of Parliament has supply'd that want, though there had been an omission in that Act. To the second, it was Triply'd, That the interruption 1633. being to secure His Majesty against Prescriptions, upon the Act 1617. It was just that it should extend as far as the Act 1617. And these words, Whereof the Ferms have been Compted for in Ex∣chequer, are only Demonstrative, and not Taxative; the compt∣ing in Exchequer being only a publick Evidence of His Majesties Right; and therefore, where there were other publick Eviden∣ces of His Majesties Right, as strong as this His Majesties interrupti∣on

by this Act, behov'd to take place, else it should not extend to secure His Majesty, as to any thing, for which there were blench, or Ward-hol∣dings; This Act mentioning only Feu-ferms; it should not extend to His Majesties Castles, or other things, for which he gets no advantage. 3. This has been compted for, in so far as the Sheriff compts for the Blench-duties; and Southesk payes Blench-duties for his Forrest. 4. By an Act of Parliament in King Davids time, 1357. and another 1367. All the Kings Forrestries are ordain'd not to be Dis∣pon'd without consent of Parliament, and so are to be lookt upon as a part of the annext Property. To the third it was Duply'd, That this Act, as the Act 1617. was to be extended to Prescripti∣ons; and there were things of less consequence than Servitudes secur'd against by this Act, such as change of holdings, Patronages, &c. This case is not decided.

The reason why this Act restricts it self in this Clause to the year 1455. is, because in that year was the first Act for annexing any Property to the Crown, viz. The 41 Act Par. 11 Ja. 2.

It being alleadg'd upon this Act, that the King behov'd to pro∣duce the Letters of Publication at the several Mercat Crosses, and the Executions thereof, else His Majesty could not have the bene∣fite of the Interruption. It was answered, That the Act of Se∣derunt of the Session, did indeed appoint Letters of Publication; but two years after that Act, this Act of Parliament was made, allowing the King this Interruption, wherein the Parliament did certainly consider the Publication, as having preceeded, & statuit lex hoc casu super praesumpto, and so the Letters of Publication and Extentions, need not now be produc'd; Which Answer the Lords found Relevant, November 1682. Sir William Ker contra Grubet and others.

Interruption being thus made by the King, does last for fourty years, so that no Prescription can run against the King, till four∣ty years after the date of this Act; and that though the Executions and publication required by this Act of Parliament, cannot be found, for every particular Shire: It may be likewise doubted, whether Prescription should run against the King, whilst he was out of the Countrey: For which, vid. observ. on the Act of Pre∣scription 1617.

BY this Act, the Parliament Rescinds all Rights of Regality made by King Charles, King James, or Queen Mary, belonging to Abbots, Priors, or any Benefic'd person; re∣serving alwise to the Heretable Baillies, and Stewarts of the saids Regalities and Stewartries; their Rights granted to them, prior to the saids Erections; for ordinarly even when these Regalities were in Benefic'd persons own hands, they made Heretable Bail∣lies;

but I confess, I understand not what is mean'd by the Stew∣art of a Regality; for Stewartries and Regalities are distinct and inconsistent Jurisdictions; a Stewart being a Judge in the Kings Property only, having the same power that a Lord of Regality has of the Lands Erected in the Regality holding of himself, and the Lands holding of him: But this Act has in this follow'd the words of the Act of Annexation 1587.

By the Act of Annexation 1587. Act 29. All Regalities belong∣ing to Arch-bishops, and Bishops, were thereby Annex'd, because their whole Lands and Temporalities were then Annex'd; but being restor'd in anno 1606. their Regalities are hereby reserv'd to them.

UPon the Submission and Surrender made by the Lords of Erection, and other Titulars, it is condescended to by this Act, That His Majesty shall remain, not only Superiour to the Lords of Erection, but even to all the Vassals, who held for∣merly of any Abbacy, Priory, or other Benefice Erected; and therefore, by vertue of this Act, they may hold of the King, if they please, but according to an express condition in the surren∣der it self; there is by this Act reserv'd to the Lords and Titulars of Erection, who subscrived this Surrender, the Feu-mails and Feu-ferms due by their Vassals, ay and till the King pay to the saids Lords and Titulars of Erection, a thousand merks for ilk Chalder, or an hundreth merks of Feu-duty, payable to them, for there is no∣thing allow'd to them for the Service of Tennents; Though the Lords of Erection did not expresly reserve to themselves the Casu∣alities that might fall to them by their Vassals, during the not Re∣demption, for they reserv'd only their Feu-mails, and Feu-ferms; since inclusio un••us seems to be exclusio alterius; and the Superiority being by this Act declar'd to belong to the King, the Casuality should follow the Superiority; yet by a Decision, the 24 of July 1632. The Lords found, that the Lords and Titu∣lars of Erection, had Right to the Casualities of these Superiori∣ties, ay and till they be Redeem'd; but by the 30 Act Par. 1 Ch. 2. It is declared, That the Feuars shall be bound to make payment of their Feu-ferms and Duties contained in their Infestments, to the Lords of Erection, ay and till they be Redeemed; but it is not clear whether Escheat and Non-entry will belong to the King, or Feuars, except it be comprehended under the general word Duties.

Though the Feu-mails and Feu-ferms be reserv'd to such Lords and Titulars of Erection, as subscriv'd the Surrender, so that it may seem necessary to prove that these who seek Feu-duties, did sub∣scrive, or else that these should belong to the King: yet be∣cause the Surrender cannot be found, the Lords found it suffici∣ent, that the Titular acknowledg'd the Kings Right, conform to

this Act: But they found that they had not Right to the Arrages and Carrages of these Kirk-lands, because by this Act, all the Rents and Duties are Declar'd to belong to the King, and the Reservation in favours of the Superiour, is only of Feu-duties, if they found no abatement of the Feu-duty, in respect of Vastations, since the Feu-duties were small, and the Feuar might have gain'd by prior and subsequent years, June 27. 1662. Watson contra Elleis. Because the Superiorities of these Kirk-lands, is by Act declar'd to belong to the King; therefore the Lords of Erection cannot pursue a Reduction of these Feus; nor is the concourse of His Majesties Advocat sufficient, except there be an express Warrand under the Kings Hand for that effect.

Albeit it be uncontroverted by this Act, that the King has no right to the Feu-mails, and Feu-ferms, due by the Vassals of Erecti∣on, until he redeem the same, as said is; yet it may be doubted, whether the King has Right to the Feu-mails, and Feu-ferms of the Lands, which pertain'd in property to the Lords of Erection, be∣fore the said Surrender, and which were mentioned in the old In∣festments, before the date of the Erection, and that without pay∣ing for the saids Feu-ferms, and redeeming them as said is, as he is oblig'd to do in the case of the Feu-ferms, due by the Vassals of Erection: and it may be urg'd for the Lords of Erection, that the King has not right to the Feu-ferms of their proper Lands, ex∣cept he Redeem them; And that because, 1. The Act of Parlia∣ment is relative to the Submission made by the Lords of Erection, whereupon the Act proceeds; but so it is, that by the Submissi∣on, they resign the Superiorities, reserving only to themselves the Feu-duties, till they receive satisfaction; but it is expresly provid∣ed, that under this Resignation, their proper Lands should not be comprehended, but that they should hold the same of His Majesty, as the same was holden before the date of the Erection; and so the meaning is, that though they should hold the same in Feu, yet they should not be oblig'd to pay the Feu-duties, till they receive satisfaction.

2. It were absurd that the Lords of Erection should not quite the Feu-duties of their Vassals, till they receiv'd satisfaction; and yet they should be oblig'd to quite the Feu-duties of their own pro∣portion, in which they had far more interest, than in the Lands of their Vassals, without any satisfaction.

3. Custom is the best Interpreter of Law, and by the general Custom of the Nation, the Lords of Erection have never counted for the Feu-duties of their proper Lands.

4. There being a Reservation made in the first part of the Act, of the Feu-duties only in case of payment; The Reservation in the second part of the Act, must in Annalogie of Law be construct∣ed to be burden'd with the same quality, except the contrary were expresly declar'd in the Act. but on the other side it may be more

strongly urg'd for the King, that he has Right to the Feu-ferms of these their proper Lands immediatly, without any satisfaction, and that for these reasons; 1. Because by the Act of Parliament, they are expresly to hold their proper Lands of the King, and to pay him the Feu-duties mentioned in the old Infestments, without any Clause obliging the King to make satisfaction; Ergo, The King is not oblig'd.

2. The Parliament having had that Reservation, of making satisfaction under their view, in the case of the Vassals, they had certainly renew'd it in the immediat subsequent case of the proper∣ty, if they had not expresly design'd the contrary.

3. By the Charters granted under the Great Seal, to the saids Lords of Erection, since the Surrender, and this Act of Parliament, they are expresly by different reddendo's made lyable, both to the general blench Duty, due for the whole Lands of the Erection, both Property and Superiority, and for the Feu-dutie of their own proper Lands: Ergo, This Feu-duty of their proper Lands, is due by their Charter, which is a Feudal Contract, and that without any Reservation of payment.

4. The blench-duty of the Erection, and this Feu-duty is due upon different accounts: Ergo, The payment of the Blench-duty is not sufficient; for the Blench-duty is due by the Lords of Ere∣ction, for the interest that they have in the Vassals Lands, and for the Tiends, and for the property that was Feu'd the time of the Erection: Whereas this Feu-duty is due only for their own pro∣per Lands Feu'd out before the Erection.

And to the contrary Objections it may be answered, That Acts of Parliament are not to be extended de casu in casum, especially in such favourable Cases as this, which tends most ungrately to take from the King a part of that which himself gave freely.

2. There was very good Reason why they should be lyable to pay the Feu-duties of their proper Lands, without any satisfacti∣on; because the King having rais'd a Reduction of all the saids Erecti∣ons; The Lords of Erection did Redeem themselves from the hazard of this Plea, by this surrender; and the reason why the quality of satisfaction was adjected, as to the Vassals, and not as to the pro∣perty, was, because the Lords of Erection had no interest in their Vassals Lands, but the Feu-duties; and so it was fit they should get a satisfaction for these; though the satisfaction was made easie for the King: But as to their proper Lands, it was just, be∣cause of the great advantage they had by them; and that they were by this Act secur'd in the property of them. It was just that the King should get the Feu-duties without any acknowledgement; and without this the King had got nothing for securing them, when he might have with Success quarrell'd their Rights; And the pretence of the Vassals, not having pay'd these Feu-duties, for their pro∣per

Lands formerly, is of no import, since the negligence of the Kings Officers cannot prejudge him; and the Times were Rebelli∣ous, since the year 1633. Nor is this true, though it were Rele∣vant; for the Earls of Roxburgh, and others have pay'd.

Because these Arguments and Difficulties gave some Colour to the Lords of Erection, to think that they were not lyable, therefore they us'd to get ease as to bygones; but they are made lyable still for the future, in the payment of these Feu-duties.

The Superiorities belonging to Bishops and their Chapters, is re∣serv'd to secure them against the Annexation, 1597. and their Su∣periorities, are likewise reserv'd from the Annexation mention'd in the tenth Act of this Parliament.

Some think it fit for His Majesties Interest, that these Superiori∣ties should be Redeem'd; for he might thereby have a great and sure Revenue, and a great dependence of Vassals; and it seems also fit for the interest of the poor Vassals.

HIs Majesty having oblig'd so far the Heretors, as to get them the leading of their own Teinds, It was thought fit by this Act, to give him some small interest in the Teinds, viz. Out of every Teind-boll of the best Wheat, ten shilling; of the best Tiend-bear, eight shilling; of the Teind-meal, Oats, Pease, and Ry, six shilling; and where the Oats will not render half Meal, three shil∣ling.

Where the Victual was of inferiour goodness, power is granted to the Commissioners to modifie accordingly, and in order thereto, they did proportion the price on the several Shires, which stands as a rule in the payment of Annuity to this day: Though it be said in this Act, that the Annuities shall be pay'd out of all Teinds, ex∣cept the Teinds pay'd to Bishops, Ministers, Colledges, Hospitals, and other pious uses; yet it was thought, January 3 1632. Ren∣ton contra Ker. Though there was no formal Decision, that de∣cimae inclusae, are lyable in payment of no Annuity, for they did not belong to the Titular, nor needed the Heretor buy them, in contemplation of which Liberty, this Annuity is granted, and in effect they are likewise lookt upon as incorporat with the Stock, and participating of its Nature.

This Annuity was found to be made debitum fundi by this Act of Parliament, and so to oblige all singular Successors; because the Act says generally, that the King shall have Right to all the Annuity bypast, and to come, though it be not expresly declar∣ed, that singular Successors shall be obliged, as our Law ordi∣narly uses to do, when it resolves to make any thing debitum fundi.

It is Declar'd by this Act, That Annuity shall not be annex'd to the Crown, whereby the Crown got a great prejudice, since thereby the King would have oblig'd every man to a Dependance upon him; whereas Commissions having been granted to sell to every man his own Annuity, the King made no advantage thereby.

THis Act is formerly Explain'd in Act 71 Par. 14 Ja. 2.

BY this Act it is Declar'd, That every man shall have the leading of his own Teind, the Teinds being first valued; and all Teinds in Scotland may be valu'd, except 1. Where the Lands are Feu'd, cumdecimis inclu∣sis and Confirm'd before the year 1589. as was found, January 21. 1631 2. Teinds belonging to Ecclesiastick Persons, and whereof they were in possession the time of the Submission, as is clear by the foresaid Determination upon their Submission, conform to which by the 9 Act 2 Sess. 1 Par. Ch. 2. All Valuations led against the Bishops, or Benefic'd Persons, being Ministers, since the year 1637. of any Teinds, Parsonage, and Viccarage, wherein they were in pos∣session by Leading, or drawing of Rental-bolls, are declar'd null; but by a Letter the 13. of May 1634. It is declar'd, that where such Teinds are set by Bishops, or Benefic'd persons to Tacks-men, that eo casu the Heretors shall have the buying of their own Teinds, but prejudice to the Bishop, &c. to enjoy the same after expira∣tion of the Tacks, as they were accustomed; the benefic'd per∣sons always having the prerogative of buying, if he pleas'd, and this to be extended to the Heretors, and Tacks-man of the Teinds of Laick-patrons. And conform to this, the Lords of the Commission decided, February 1679. Hamilton contra Earl of Rox∣burgh; though it was there alleadg'd, that this would prejudge Church-men, since it would discourage Laicks to take Tacks from them at due Rates: but Teinds holden of Collegiat Kirks, are subject to buying and selling, as other Teinds, the 3. of Febru∣ary 1632.

Though it would appear by this Act, that every man shall on∣ly have the Leading, and Drawing of his own Teind, after the same is valu'd, since the Act sayes, the same being first truly and lawfully valued: Yet if the Heretor intent a Pursuit for Valuati∣on, he will, during the Dependence, get liberty to lead his own Teinds, if he offer Caution to pay his Teinds, conform to the Va∣luation that shall be led, July 14. 1630.

But this benefit of leading is only granted to Heretors, by the the foresaid Act; and therefore no Liferent Tacks-man hath this be∣nefit, except the Liferent be Constitute, by Infestment of Conjunct-fee, or the like, November 30. 1631.

Neither can Rentallers, or Tennents crave this benefit, ex eodem capi••e, March 8. 1630. It is only granted likewise to such He∣retors, whose Teinds were drawn before, but not to these who pay'd Rental-bolls, July 24. 1635. And yet the contrary is found the 3. of July 1643, But the Heretor may have the leading of his own Teinds, though he does not instruct a publick Infeftment, if he shew that he is not in mora, to be Infest, and that he is the person who should be Infest, July 6. 1642. But the Teinds be∣longing to Church-men, whereof they were in possession the time of the Submission, are not to be led upon Caution; and yet by a Missive the 9. of May 1634. His Majesty declares His Favour not to be extended to their Tacks-men, being Laicks; but that du∣ring these Tacks, the Heretor may lead, he finding Caution, as said is.

By the Submission, the Decreets following thereupon, and the express words of this Act, Ministers are to be provided before the He∣retors have liberty to buy, or value; and therefore the Titular may allocat what Teinds he pleases, towards the Maintainance of the Minister; and the Heretor eo casu cannot force the Titular to sell, February 17. 1645. But though the Kirk be not provided, yet the Heretor may buy his Teinds, if he be content to undergo his part of the augmentation when it shall be granted, the 20. of Ja∣nuary 1645. Earl of Hadington contra the Laird of Bairfuird. So that it appears, that albeit a Titular may assign any one mans whole Teinds towards the Ministers Maintainance, when there is no pre∣sent provision; yet if there be any, though it be small, he may not; but the same should burthen proportionally, the whole free Teinds of the Paroch, where there is a present provision, and where the Teinds are once bought, the Heretor will not be bur∣dened, as long as there is any Tack-duties free in the Titulars hands, February 15. 1643. But the Tacks-man will not be found lyable in the said Relief, January 27. 1635. But if there be no free Teinds in his hand, then the Buyers, and all the He∣retors must be burdened with the augmentation, January 16. 1635.

It seems that the Titular cannot assign the Teinds of one Paroch for paying the Stipend of another; For by this Act it is said, That the Teinds shall be burdened with the Stipend of the Minister serving the Cure of the Kirk: But the Commission allocats sometimes the Teinds of one Paroch, to make up a Stipend to the adjacent Pa∣roch, if the Minister of the Paroch, out of which the free Teinds are allocated, be competently provided; for the Commission thinks the Teinds, as the Spirituality of the Church, to be burdenable in ge∣neral; and yet if this argument prove any thing, it will prove there can be no free Teinds as long as there is any Minister in Scot∣land unprovided competently.

BY this Act the Exchequer is Declar'd a Soveraign Court, and power is given them to pass, and discuss Suspensions, and to Decern in all things concerning His Majesties Property, and all things concerning the Annuities of Teind, which was the particular reason of making this Act at this time; but because of this Act giving them power to decide every thing relating to the Proper∣ty; therefore by the 59 Act Par. 1 Sess. Ch. 2. It is declared, that the deciding concerning the validity, and invalidity of Infestments, shall only belong to the Session. And whereas this Act allows the Ex∣chequer only to proceed in things relating to His Majesties Pro∣perty and others depending thereon, that Act declares they have liberty to judge in all things relating to His Majesties Rents and Ca∣sualities, as they might have done before the year 1633. And it being doubted, whether the Lords of the Session were Judges competent to the Discussing Suspensions, rais'd against the Custom∣ers, by the Masters of Manufactories, who pretended, that as to goods imported for the use of their Manufactories, they were free from Custom; the Lords did justly determine, that thogh the Exchequer were only Judges Competent to Discuss Suspensions, as to Customs, or any part of His Majesties Revenue, where the same were due by a clear Law, or constant use of payment; yet the Lords of the Session were Judges Competent to clear what was due by Law, and to interpret Acts of Parliament.

Nota, The Act of Parliament alleadg'd to be made upon the 22. of May 1584. Concerning the Exchequer, Ratifi'd by this Act, can neither be found amongst the Printed, nor the Un-print∣ed Acts.

Though by vertue of this Clause, and a Letter from His Maje∣sty, It is declar'd That the Exchequer are Judges competent to liqui∣dat Wards and Marriages, and that the Exchequer has decided in some such cases; Yet regulariter, the Session are only Judges Com∣petent to such Actions; and albeit the Session be only Judges Competent to Contravention of Law-borrows; yet after the Con∣travention is Decided in His Majesties favours, if the party, against whom the Decreet is obtain'd, Suspend the same, the Charge be∣ing at His Majesties Instance, it ought only to be Judg'd by the Exchequer, that being a Casuality already stated, and the point of Law being already determin'd; although it be alleadg'd, that this being a Suspension of the Lords of the Sessions Decreet, it should only be Discuss'd before them ob continentiam causae.

Though by the 25. Act Par. 16. Ja. 6. It is appointed, that all Hornings henorth Dee, shall be upon no less than fifteen Dayes; Yet that is to be restricted, as has been there observ'd in Cases before the Council; for by this Act, all Charges of Execution before the Exchequer, are to be upon twenty dayes upon the North-side of Dee, and ten days upon the South-side of Dee.

THis Act is the first Commission granted for valuing of Teinds, conform to the Surrender, and Decreets Arbitral pronunc∣ed thereupon; which Commission is renew'd in several subsequent Parliaments: And for clearing somewhat of The Form of Process before that Court; it is fit to know, that all Dyets before the Com∣mission, are with Continuation; and because of their uncertain sit∣ting, there needs no Wakening; all Procurators appearing before them, should have Written Warrands, but this is not in obser∣vance; but consents by Advocats must be subscribed by Advocats, else Decreets given thereupon are null, July 20. 1664. And Exe∣cutions are sufficient by a Sheriff in that part, July 10. 1643. and there∣upon the Defender will be holden pro confesso.

The Commissioners did of old, appoint Sub-commissioners in every Presbytry, who were to be chosen by the Presbytry it self, and five to be a quorum, for trying the Valuation of every mans Teinds, and before them Process were intented at the instance of the Procurator-fiscal, or the Heretors; and their Reports being return'd to the Commission, were allow'd. The Injunctions given to them, then were, That none should be Witnesses before them who were not worth an hundred Pounds of free Gear; that such as dwell within the Presbytry should be Cited upon ten days; and such as were without it, upon twenty; that the Depositions should be Subscriv'd by the most part of the Sub-commissioners, and the Clerk; and when any man would make use of anothers Servant, as a Witness, that the Master should produce him upon his hazard; that where both used Probation, not the greatest number, but the clearest Deponers should be prefer'd; and no Witnesses to be receiv'd but only ten for each Party, which was thereafter Expon'd to be ten for each Room, July 18. 1634.

The Probation is oft-times allow'd to both Parties in this Court, and where it is single, it is call'd The Prerogative of Probation, and is much contended for; Wherefore it is thus regulated, viz. ei∣ther the Teinds are drawn ipsa corpora, by Titular, or Tacks-man, and then they have the sole Probation allow'd them, to prove what the Teinds were worth, they proving that they led seven years of fifteen before the year 1628. And though after so long a time, this can∣not be proven; Yet the proving immemorial Possession is found equivalent; or else they have Rental-bolls pay'd them, & eo casu they have the sole probation likewise, they proving twenty years possession, of uplifting Rental-bolls, condescending upon the quan∣tity, and quality: Or in the third case, the Heretor has Tacks of their own Teinds, for payment of Silver-Duty: and then there is joynt Probation allow'd, both to Heretor and Titular; albeit the Heretor have the benefit of a Conjunct Probation; Yet he may refer the worth to the Titulars Oath, before Witnesses be receiv'd, but not after, February 21. 1623. but where the Titu∣lar

has the sole Probation, the Heretor cannot eo casu lead any Pro∣bation of the Stock, except it be for certification, id est, except where the Heretor summons the Titular, who was in possession of Drawing of the Teind, to prove the worth thereof, with Certifi∣cation to him, if he appear not, the Heretor will prove the worth of the Stock, quo casu the fourth part is Declar'd to be Teind, February 19. 1634. and February 24. 1643. Where the Stock and Teind are valu'd joyntly, the Teinds are made the fifth part; but where the Titular and Tacks-man has the sole Probation, the Heretor has the fifth part down, as the Kings Ease; and there∣fore where the Titular takes a Dyet for proving of the Teind by it self, the Heretor may take the same Dyet to prove the Stock, that in case the Heretor fail, he may have the Kings Ease, July 8 1642. Where there is joynt probation of Stock and Teind, the present Rent should be proven, as well as the Rent in all time coming, else the same is null, January 19. 1631.

There are two Dyets granted for probation in this Court; and if the first be not made use of, the Term may be circumduc'd, and the second will not be granted, February 2. 1643. and though Diligence be Extracted after the Dyet; yet if it be Extracted be∣fore the other party crave the Term to be circumduc'd, the same will be sustain'd, November 22. 1634.

By this Act also it is Declar'd, That where Valuations are law∣fully led against all Parties having interest, and allow'd, they shall not be call'd in question at the Instance of the Minister, not be∣ing Titular; nor at the instance of His Majesties Advocat, for His Annuity, except the Collusion be proven, to have been to the Diminution of the third of the just Rent presently pay'd; and therefore all Reductions upon this head, are at the instance of His Majesties Advocat; but it may be doubted, whether His Majesty has any interest, where the party has bought his own Annuity; though it may be alleadg'd, that even in that case, the Decreet is Reduceable, together with the Alienation founded thereupon, if subsequent to the Decreet, because the Exchequer has sold upon a mistake, occasioned by the Collusion, albeit regulariter with us, Venditions are not quarrellable, as in the Civil Law, though made infra dimidium.

By this Clause it is likewise Declar'd, that this Collusion shall be probable by the parties Oaths, and thereupon it has been doubted, whether this Clause be Exclusive of other probation, and in Mel∣drums case against Tolquhon, before the Commission in January 1672. It was found, that a Decreet of Valuation might be Reduced upon this Clause, if it were proven by Witnesses that the valuation was led far within the third of what the Teinds were then worth.

THese Acts are but Temporary.

BY this Act the Liberties of the Colledge of Justice are restricted to the Senators of the Colledge of Justice; and this is the first time that the Senators of the Colledge of Justice were divided from the other Mem∣bers; but thereafter the priviledges of the Senators are Communi∣cated to Advocats, Writers, and others, by the 23 Act Par. 1 Ch. 2. vid. observ. on that Act.

THis Act anent the priviledges of Royal Burrows, is innovated by, and therefore shall be Explain'd in the 5 Act 3 Sess. 2 Par. Ch. 2.

THis Act gives a very large Commission to the Lords of Secret Council, to grant to the Justices of Peace, and Constables, what∣ever power the Parliament could have granted them; but this be∣ing in effect but a Commission, may be alleadg'd to expire with the King and Parliament who gave it, as all Mandats last no longer than the Mandator; and the power being given to the Privy Council inde∣finitly, without adding, for the time being; it may be urg'd, that it could last no longer than that Commission of Council; and from this many new doubts may be started, which shall be elsewhere consi∣dered; but however the Council does still grant Instructions by vertue of this Act.

THis Act impowering the Lords of Session to exact 12 pennies of the pound of all sums decern'd by them is now obsolet.

THis Act concerning the priviledges of Baronets, is fully Ex∣plain'd in my Treatise of Precedency; but from this Act it is observable that the Convention of Estates have been in use to Ratifie and approve general Orders granted concerning Honours; though it be generally believ'd, that the Convention of Estates can only grant voluntary Taxations, and nothing else; and I formerly ob∣serv'd that they were in use to regulate the Mint also.

VId. observ. on Act 13 Par. 18 Ja. 6.

THough by this Act the Clangrigor were abolish'd, and they ordain'd to alter their sirname, because of their bangstry; yet because of their good Services done to His Majesty, during the late Rebellion, they were restor'd in anno 1661.

It has been always believ'd, that no Clan or Family can change its sir∣name in Scotland, without express Act of Parliament, or Act of Council; for that might occasion great confusion, and might be a ground of cheating the people in their Evidents and securities. But any privat man may, as we see daily in Tailies; and it does not follow, that be∣cause the Parliament only can force men to change their sirname, that therefore they cannot do it voluntarly themselves.

BY this Act it is expresly declar'd, that because particular Acts of Parliament, and Acts of Ratification, are made without hearing

of Parties, that therefore the Lords of Session shall Judge in these cases, without respect to those Acts, according to the privat interests of parties. The immediat occasion of making this Act, was the case betwixt John Stuart of Coldinghame and the Earl of Hume, which was this.

The Earl of Bothwel having been Forefaulted, the Priory of Col∣dinghame was Dispon'd by the King to the Earl of Hume, which Earl of Hume, set in Tack a-part of the Teinds of the said Priory, to the Laird of Wedderburn, but thereafter the Earl of Hume having entred in a Transaction with John Stuart, Son to the Earl of Bothwel, he suffers by Collusion, a Decreet of Parliament to pass in anno 1621. whereby John Stuart was not only re-habilitat as to his Blood, but the Forefaulture Rescinded, in so far as concerned his Right to the Pri∣ory of Coldinghame, upon a pretext that he had a commendam of it settled in his person, before his Father was Forefaulted, whereup∣on Dowglass of Evelaw, pursuing the Laird of Wedderburn for a Spuil∣zie of Teinds in anno 1627. he obtains a Decreet, notwithstanding of very unanswerable grounds, then alleadg'd; because the Lords of the Session would not call in question the Act of Parliament 1621. Notwithstanding of the Act salvo subjoyn'd to the Acts of that Par∣liament; for the Lords found, that the Session as an inferiour Judi∣cature, could not canvass special Acts of Parliament; but because the Subjects might be extreamly prejudg'd in their privat Rights by such Acts of Parliament; therefore the foresaid Claus•• was inserted in this Act, and that it might extend to this Case, though anterior it is expresly declar'd in this Act, that this was the meaning of all for∣mer Acts Salvo; and accordingly the Lords of the Session did in February 1679. Repone the Laird of Wedderburn to Debate upon his just Rights, notwithstanding of the Act of Parliament 1621.

By this Act several privat Rights and Ratifications, are except∣ed from this Act salvo; But since the Act salvo proceeds upon the principal of natural Reason and Justice, it seems that even these Excep∣tions are questionable, for else the Act salvo should signifie nothing; For these who had the interest to obtain privat Acts of Parliament, would likewise have the interest to get them excepted from the Act salvo; and upon this Reason it was doubted, and not Decided, whether Exceptions from the Act salvo, made in privat Rights, though not repeated in the Act salvo, were sufficient to secure these Rights against the Act salvo; for though it might be alleadg'd, that in these there is a speciality from this case, since the Act salvo being posteri∣or, and simple, Annuls and Derogats from the former Reservati∣on; yet even there it may be alleadg'd, that it cannot derogat, since in the former special Act, the Parliament Declar'd their spe∣cial Inclination, that it should not Derogat.

Nota, The Act salvo jure is never Voted in Parliament, because it is but an Act in Course; and for the same Reason, Ratifica∣tions are not Voted now, since no man can be concern'd in either; albeit of old, I find that Ratifications were past in Parliament

in the form of decreets, and so must have been voted; but it seems strange, why Acts for granting of Mercats, and Imposing Customs for the maintaining of Bridges, should not be Voted: And in the Parliament 1681. The Reports of the Articles thereof, as to these, past the last D••y, without being Voted, which was oppos'd by some as irregular; because there the consent of some parts of the Nation was requi∣site. But I conceive, that this likewise proceeded from the nu∣merousness of the things that were brought in, and the general acquiescence of the Members, and the time they were to sit being so short, and it seems securer to settle these by a vote.

Notes

• ACT 1.
• ACT 2.
• ACT 3.
• ACT 4.
• ACT 5.
• ACT 6.
• ACT 7.
• ACT 8.
• ACT 9.
• ACT 10.
• ACT 11.
• ACT 12.
• ACT 13:
• ACT 14.
• ACT 15.
• ACT 16.
• ACT 17.
• ACT 18.
• ACT 19.
• ACT 20 & 21.
• ACT 23.
• ACT 24.
• ACT 25.
• ACT 26.
• ACT 28.
• ACT 29.
• ACT 30.
• ACT 31.