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

King CHARLES 2. Parliament 2.

Session 1.

IT is observable, that in all the Sessions of this Parliament, the particular day of the Month whereupon the respective Acts were past, is set down, and yet since the Acts are to take effect, not from the passing, but from the publication, as is clear by the 3 Act of this Parliament, it would have seem'd more rational to have set down the day of the Publication; To which nothing can be answered, but that the Laws are presum'd to be publish'd the day they were past in. In no former Parliament the day is set down, but the whole Parliament is said to be held upon such a day, and the old use was, that the Articles prepar'd all the Acts, and they were all past in one day.

THis Act Declaring the Kings Supremacy in Ecclesiastick Causes, is formerly explain'd in the Observations upon the 2 Act Par. 18. Ja. 6.

IT is observable from this Act, that the Militia is come in place of the old Weapon-showings, and that there being 20000 Foot, and 2000 Horse granted as a Militia, by the 26 Act 3 Session of the first Parliament, which does specifie the particular proportion of Horse and Foot, to be given by every Shire; It might have been thought, that these proportions could not have been altered but by the Parliament; and yet the King and Coun∣cil having Converted the Foot of some Shires unto Horse, seems to be founded upon the last Clause of the former Act, where∣by His Majesty is intreated to give Directions to His Privy Council for mannaging of that whole affair, as His Majesty shall think fit: which Acts of Council, and the said alteration of the proporti∣ons, are hereby Ratifi'd as having been Legal; and in the last Clause of this Act, His Majesties Subjects are Commanded to obey whate∣ver Orders and Directions they shall receive from the Privy Coun∣cil, relating to the Militia, and upon these Clauses was founded the overtures of the late Conversion of the said 22000 to 5000, aug∣menting the number of the days, wherein the said 5000 are to serve, according to what might have been exacted from the whole 22000, so that the 5000 are to meet▪ the number of 176 dayes, because

the 22000 were oblig'd to meet fourty dayes; though this last mo∣del was by some objected to be a standing Force: and all Laws are stricti juris, and to be fulfill'd in forma specisica; but especially Taxations, which are a Gratuity, founded upon the free Offer of the people, as this is, to allow Conversions in such Cases, would discourage the Subjects from future offers.

This Act likewise did Ratifie the Acts of Council, which appoint∣ed the Shires to provide at their own Charge, Colours, Standarts, Drums, and Trumpets, though that might seem an Imposition; but these being necessars, and the natural Consequents of the first Grant; and the Parliament having granted to the Council the former power, as said is, these Acts of Council are therefore hereby approven as Legal.

Both this and the former Act doe ordain the Militia to be fur∣nished with fourty Dayes Provision, which was the old provision, that was ordinarly to be made by such as came to the Host; al∣beit sometimes twenty dayes provision be only appointed, as in the 90 Act 13 Par. Ja. 3. And of late the Council has ordain'd this pro∣vision to be made in Money, though it was contended that the Par∣liament having appointed only provision to be made, it was in the power of the persons obliged to furnish their own men according to their conveniency; But Money being thought fitter for expe∣dite Marches, the Council thought they were authorized by the for∣mer Clauses, to make this Conversion; and some have thought that by the same power, the Council could ordain the Shires from whom no proportions of Militia was sought to advance free Quarter to such of the Militia, as could not furnish themselves, or at least, might force them to be the first advancers in Cases of necessity.

This Act concerning the Militia is further clear'd by the first Act of the third Session of this Parliament, appointing such as 〈…〉〈…〉 serve either as Officers, or Souldiers in the Militia, to accept and to take the Oath of alleadgeance; and that those who are set a-part for the Militia, be not altered, &c.

NOtwithstanding of all our former excellent Acts, for securing singular Successors, yet they were still un-secure, because they could not know, if the Vassal had Resigned his Feu ad rema∣nentiam, in his own Superiours hand; for in that case there was no Seasin requisite, which is the only Register whereby singular Successors know, if Lands were formerly Dispon'd; and therefore by this Act it is appointed, that these Instruments of Resignation ad remanentiam, (which are equivalent to Seasins,) be Registrated in the Register of Seasins, within sixty dayes, which is the time appoint∣ed for Registrating of Seasins by the 16 Act Par. 22 Ja. 6.

By this Act likewise as in that Act, Instruments of Resignation of Lands, holding Burgage, are excepted; but it seems that they must be Registrated within the Town-Court-Books within the same sixty dayes; for the Act sayes only, That such Instruments being Registrat∣ed there, shall not fall within the Certification.

BY this Act it is Declared unlawful to poind Moveables upon Regi∣strat Bonds or Decreets, for personal debts, till the parties be first Charged, and the dayes of the Charge expire; The reason of which Act was, because Noblemen and persons of quality were oft-times poinded, and so affronted, and Merchants surprized, and thereby Ruined, before they knew that a Decreet was recovered against them, or their Bond was Registrated: But this Act was found not to extend to other Diligences ex paritate rationis; this being an Act restrictive of former Laws and Customs. From this Act are expresly excepted poindings used against Vassals for their Feu-duties: But this Exception was very unnecessary and unproper; for such poindings did not at all fall under the prohi∣bition of the Statutory part of the Act, which only prohibits the poinding Moveables for personal Debts; Exception is likewise made of Decreets obtained by Heretors against their own Tennents in their own Courts only; and therefore it has been doubted, whe∣ther Tennents may be Remov'd and Ejected, without a previous Charge; and though upon Decreets before the Lords, previous Charges are necessary; Yet upon Decreets of Removing before inferiour Courts, it is the Custom to eject immediatly; and though this may seem hard, yet it is necessary, because the intrant Ten∣nent must Remove immediatly, and so must have a place, to which he may remove, & sibi imputet, the Tennent who being warned did not provide himself timeously.

IT is fit to observe from the Narrative of this Act, that the Par∣liament thought the King and Council had power to emit Pro∣clamations, Commanding the Parochs to Protect and Defend their Ministers, and to be lyable to such Fines as the Council should think fit, besides the Ministers Reparation, if the Offenders were not brought to condign punishment, which shows what great power the King has in the like Cases; and the Council are hereby autho∣rized to proceed in taking such courses for the future, which gene∣ral power may go very far, especially where these courses are other∣wise satisfied by necessity.

This Act is more fully Explain'd in the observations upon the 27 Act Par. 11 Ja. 6.

FRom this Act Discharging Suspensions against Bishops, Ministers, and other Benefic'd persons without Consignation: It is observ∣able from comparing the Narrative and Statutory part of the Act,

that Vniversities and Colledges are still accounted a part of the Clergy, and have still the same priviledges with them.

SInce we find that the Parliament grants Acts for Naturalization of Strangers, as is clear by this and by the 65 Act Par. 8 Q Mary. It may be doubted, if the King can Naturalize Strangers by a Deed of His, for else those Acts were unnecessary: and in England, though the King can grant a Charter of Denization, which lasts only for Life; and though it enables a man to Transact his Heritage to his Children; Yet His Majesty cannot there Naturalize without Act of Parliament; and it may be urg'd, that since third parties, who would otherwise succeed, are prejudg'd by the Naturalization; that therefore this cannot be done without an Act of Parliament; especially if there be once jus quaesitum to any party: But by the Civil Law, the Prince could Naturalize, l. 1▪ ff. de jur. aur. annul. Of old Strangers acquired only usum toga; and at last were receiv∣ed inter cives, l. 31. & 32. ff. de jur. Fisci. And with us Craig ob∣serves, that bona immobilia nemini ablata memini ex eo quod extraneus esset: And I find it decided that Strangers may succeed with us, Janu∣ary 13. 1675. And that Strangers doing Diligence for their Debts, may enjoy and affect Lands in Scotland, seems more favourable, for else there could be no Commerce, for without this none would trust our Merchants or Countrey-men.

The Design of proving Trade, by Naturalizing Strangers, has been very ordinary; for as Plinius Remarks nunc factum est ut gens altera alterius suppleret inopiam & ut quodam modo quod genitum esset uspiam apud omnes natum esse videretur in France Lewis the 11. Did upon the same Design Naturalize those who Traded in the Hansea∣tick Towns.

TO encourage the Exportation of Commmodities, the Bullion which was formerly payable by the Exporters, by the 37 Act 1 Par. Ch. 2. Is by this Act imposed upon the Importers.

BY this Act all Arrestments on Registrated Bonds, or Contracts, or Decreets not pursu'd and insisted on within five years after the Date: and all Arrestments upon Dependences shall prescrive, if not insisted on within five years after Sentence; so that there is here a new visible difference betwixt Arrestments on Dependences, and Arrestments upon Decreets, but upon the matter that comes to be the same; For all Arrestments upon Dependences, are likewise by this Act to prescrive within five years from the Sentence, that is to say, from the Decreet; so that utrobi{que} the prescription begins from the Decreet.

By this Act likewise, Ministers Stipends, Multures, Bargains con∣cerning Moveables and Sums of Money, that are probable by Wit∣nesses, are after this Act declared only probable by Writ, or Oath of party after five years; and all actions upon Warnings,

Spuilʒies, Ejections, Arrestments, or Ministers Stipends, are to prescrive within ten years, except they be Wakened every five years, but prejudice alwise of any of the saids actions, which by former Acts of Parliament, are appointed to prescrive in a shorter time; Which Exception is here added, because of the Acts 81, 82, and 83. Par. 6 Ja. 6. By which Spuilʒies, Ejections and Re∣movings, did prescrive within three years; Yet if any action was intented upon them, it did not prescrive otherwise than in fourty years: Therefore by this Act, these Actions are Ordained to prescrive in ten years, except the action be Wakened; that is to say, a new Summonds raised and executed; for the raising of a Summonds is not sufficient in any case to stop Prescription, vide Observations upon these Acts. It was sound, Hamilton contra Herreis, March 20. 1683. That this Act was not to be extended to the Teind-duties due to Bishops, or other Titulars, being only a Correctory Law: and in the Case pursued by Sir William Purves contra It was Debated that a part of what was due to the Minister, could not prescrive, because it was Mortified Money, and Mortifications are not appointed to prescrive by this Act; But the Lords found that if a Mortification became a part of a Stipend, they did pre∣scrive by this Act, though of their own nature they do not pre∣scrive: Holograph missive Letters, and Holograph Bonds and Sub∣scriptions in Compt Books, without Witnesses, not pursu'd on with∣in twenty years, are only to be proven by the Oath of the Sub∣scriver, so that if the Subscriver die, these Debts die with him. I remember the Parliament expresly refused to limit Bills of Exchange to this time; though these be Holograph Papers, because these be∣ng the Vehicles and Supports of Trade betwixt us and Forraigners, ••hat were to limit them by too narrow Statutes.

These Prescriptions are ordain'd not to run against minors; and from this and the next Act it may be argu'd, that Prescriptions regularly run against Minors, except they be secured by a positive Statute.

BEcause Citations do interrupt the current of a Prescription; therefore this Act does appoint that only Executions by Mes∣sengers shall interrupt, which was done to Exclude Sheriffs; In that part Messengers being persons of publick Trust, and who find Cau∣tion; But though this Act mentions only Messengers, and that it is correctorie of a former Custom, and consequently ought to be strict∣ly Interpreted: Yet Citations by Heraulds or Pursevants will In∣terrupt; nam majori inest minus: It was alleadged that this Act should extend to all Interruptions, so that if an Interruption had been made in anno 1660. It should be renew'd after this Act; for the Act says, That all Interrupions shall be Renewed evrey seven years: But it was found, February 5 1680. Colstoun contra Barefoot. That only such Interruptions should be renewed as were made since the Act of Par∣liament;

for the first part of the Act bears, That all Interruptions as to Rights of Lands, shall in all time hereafter be Executed by Mes∣sengers: and the last part of the Act must be Interpreted accor∣ding to the first, and agrees with the general Nature of Laws, quae futuris tantum dant formam negotiis. Since this Act is only to ex∣tend to Interruptions, concerning the Rights of Lands, some have doubted, whether it should extend to Heretable Bonds and Servitudes.

BY our former Law Explain'd in my crim. prac. tit. Treason; It appears clearly, that no man could be forefaulted in absence, ex∣cept before the Parliament; But this being thought a great incou∣ragement to Rebellion, the Justices did, upon an advice from the Lords of the Session, alter the Conclusion of Criminal Libels for Treason, making the Certification to be, that probation should be led against them, and they should be Forefaulted, as if they were pre∣sent; and therefore by this Act, these Decreets of the Justices are Ratified, and for the future, It is Ordained, that such as rise in Arms in open and manifest Rebellion against the King, may be Fore∣faulted before the Justice Court: So that this method can only be taken against such as are guilty of Perduellion, but not in Statutory or other Treasons, such as the raising a fray in the Kings Host, drawing Treason∣able Papers, &c. For these can yet only be forefaulted before the Parliament, though they may be declared Rebels before the Ju∣stices: and it has been doubted, whether the hounding out to open Rebellions, or the Resetting those who were at them, be punishable by the Justices in absence; for Art and Part is by the 114 Act Par. 12 Ja. 6. To be punishable as the Crime, whereof it is an accession, and it really deserves oft-times a severe and speedier animadversion: and thus a Noble-man of great interest Plotting, o•• Hounding out, is more dangerous than a Tennent who actually Rises in Arms: But on the other side it is urg'd, That Rising in Arms is to be pur∣su'd so in absence, because the Probation is so notour, that it can hardly be deny'd, but the probation of secret Treasons may be more dangerous, if taken in absence.

It has been doubted, whether such whose Forefaultures were Ratifi'd by this Act, could be thereafter admitted to propone an Exculpation, since the Justices could not Rescind Sentences of Par∣liament? and whether such as are Forefaulted before the Justice-Court, can be admitted to propone any such Exculpation upon their being alibi? (or else where) Or that there was two of the same Name, or to object against the Witnesses, for the persons Fore∣faulted being cited, sibi imputent, that they appeared not? and if this were allow'd, Forefaultures might be easily Evacuated; and whatever might be said as to alibi in the first Instance, yet it were

hard to Reduce a Decreet upon it, and except the person Forefault∣ed could prove an invincible necessity, why he could not come, or send, certainly none of these D••fences can have the least shadow of Justice; nor is it sufficient to say, That they were either afraid, or out of the Countrey; for these are the ordinary Defences of such as are guilty, and any guilty person might go out of the Countrey pur∣posely to have this Defence.

The method now observ'd in Forefaultures in absence, before the Justice-Court, is, that the Advocat Raises a Libel of Treason with the former Certification, he sends a Herauld with a Display∣ed Coat, to give the Citation, and sends Witnesses alongs, who at their Return, swear that they saw the Execution truly Executed; be∣cause that was found to be the Form before the Parliament. Then the Witnesses are adduc'd, after the Relevancy is cleared by Inter∣locutors, who are Examined whether they knew the party who is to be Forefaulted, which excludes the Defence, that there were more of one Name, as the purging them of partial Council does all objections against the Witnesses, that can be thereafter found∣ed upon, since it was their own fault, who compeared not to ob∣ject.

The Advocat uses ordinarly to cause Cite the Pannals upon six∣ty dayes, and at the Mercat Cross, and at their Dwelling-House, lest they be out of the Countrey; at all which places, Copies of the Libel, the Names of the Assizers, and Witnesses are left.

Though ordinarly the Advocat, for further Terror, causes Renverse, and Tear the Coat of the Persons Forefaulted, in the Justice-Court, with sound of Trumpet, after the Doom of Fore∣falture, and Proclaim them Traitors over the Cross with sound of Trumpet; Because that Solemnity is observed in Forefaul∣tures before the Parliament; yet this is not thought absolutely ne∣cessary.

It is observable, That in the Process against the Earl of Mar and others, for taking away King James the Sixth from Stirling: and the Earl of Gowries Forefaulture, the Summons were before the King, Parliament, and His Justices, and the Doom is, the King with the advice of His Parliament, and His Justices: Some think the Ju∣stices sit only in Parliament, as the Judges sit in England; But the Summons having been before them, insinuats that they were conjunct Judges, and not Assessors. The probation in that case is led before the Lords of Articles, and not before the Parliament; but in anno 1661. The probation was led in plain Parliament, and this is juster, because the Parliament is the Grand Inquest.

The last words in the Act, viz. If the said summons be found Rele∣vant, and proven by the Verdict of an Inquest, are wrong Pointed; For the summons cannot be found Relevant by the Verdict of an In∣quest.

BY the 39 Act Par. 1 Ch. 2. Forraign Salt to be employed up∣on Fishing, was to be free of Custom and Excize; but by se∣veral Acts of Exchequer thereafter, all Fishes spent within the Countrey, lost that priviledge, and by this Act the Importer is or∣dain'd once to pay all the Excize on forraign Salt, which is to be Re-pay'd by the Customers, to such as can by Certificats prove, that the same was employ'd upon Fishes; and though it was pretended, that this could not prejudge the Importer, since he was to be Re∣pay'd, if the Salt was imploy'd upon Fishes; whilst on the other hand, it would secure the Kings Customs, and would keep out much Forraign Salt, whereof very much was now brought in, up∣on pretext of being employ'd upon Fishing: Yet to this it was an∣swered, that this would destroy the Design of Fishing Companies, and shew too much the Inconstancy of our Parliaments. 2. Many poor Families were employ'd in Fishing, who would get credit for Salt, and yet would not get Money to pay the Excize thereof per advance. 3. Fishers were sometimes forced to bring in great quantities of Salt, being uncertain what quantities of Fish would be taken; and oftimes they would lose their Salt altogether. 4. This and all such Methods, which subjected the Merchant to the Customer, de∣stroyed Trade, and in this case they had but a personal action a∣gainst publick Servants for their advanced Money, and probably these publick Servants would not have so much Money at once in Lews, L••chsine, &c. as would pay back the Excize of Fishes ex∣ported out of these Places, and beside that, the Customer might Retard the Merchant at his pleasure. 5. The poor Merchant be∣hov'd still to make two unnecessary Voyages, one to pay the Ex∣cize, and another to seek payment.

By this Act likewise, the Merchant is ordained to give his Oath upon the Custom and Excize, though by the 57 Act Par. 1 Ch. 2. Their Oaths are discharged in matters of Custom.

THis Act annexing Orknay and Zeatland to the Crown, is Ex∣plain'd in the Observations upon the 41 Act Par. 11 Ja. 2.

BY this Act it is Declared lawful to Export Corns, except when the same is Discharged by the Council, upon the account of Dearth, and to encourage Exportation, Corns are to pay no Cu∣stom, Bullion, or other Duty, except one Merk Scots for ilk Chalder, Vid•• Observations upon the 11 Act Sess. 3 Par. 1 Ch. 2.

BY this Act the Lords of the Privy Council are Empowered to Regulate the prices of Ale and Drinking Bear, and to settle a proportion betwixt the weight of the Bread and the Boll of Wheat, and the price of the Ale, and the Boll of Bear; upon which War∣rand, the Privy Council do not pretend that they can settle a price

upon Victual, but that they may thereby only proportion the price of the one with the other, so that they may Discharge Malt-men or Baxters to give less than such respective prices, when they sell their Bread and Ale at such and such Rates, as they did by their Proclamation in the years 1677. and 1680.

By this Act Malt-men are likewise discharged▪ to have a Deacon, and least this Act should be eluded, it is appointed, That no Malt-man shall keep Correspondence, nor meet upon any pretext whatsoever; and therefore I conceive, that such Towns as appoint, that none shall brew except Gild-brothers; and in meettings of the Gildry, Treat of, and settle the Prices of Malt, Seed, and Bear, do thereby con∣traveen this Statute, vid. Act 29 Par. 1 Ja. 6.

THis Act having appointed, That Sheriffs and others, may con∣veen all Tennents, and Cottars, &c. for Repairing High-ways, and Bridges, at any time betwixt Seed-time and Harvest; and that being found too short a time, It is therefore appointed by the 9 Act of the second Session of this Parliament, that they may be called the same number of dayes, in any Season of the Year, Seed-time and Har∣vest excepted.

THis Act is Explain'd in the Observations upon the 41 Act Par. 1 Ch. 2.

THis Act is Explain'd in the Observations upon the 7 Act Par. 23 Ja. 6.

THis Act is Explain'd in the Observations upon the 6 Act Par. 20 Ja. 6.

BY this Act the Shires of Ross, Sutherland, Caithness, Argile, and Inverness, are Declared to be lyable in the double of the Excize, and of the Taxation then current, laid on by the Convention, in case of their being Deficient; against which Act, it was alleadg∣ed at the passing thereof, that this seem'd very unjust, since as to both these, one Shire could not be put in a different Condition from the rest, in a common concern; but that the legal way was, to use stricter Execution against them; and whatever might be done at the first laying on of an Imposition; yet after it is laid on, this seems hard, for probably these Shires would not have Consented, if they had foreseen any singularity, nor did they consent to the Ex∣cize, but upon equal Terms with other Shires, and this was yet much harder, because both these Taxations were voluntar Offers, and consequently should not be otherwise exacted, than in the Terms in which they were offered. Likeas, this would discou∣rage any Shire for the Future, to offer, or consent to Taxations, because they could not know but a prevailing party, or the passi∣on of some leading men, might raise to the double what they con∣sented

to; which Reasons were so convincing, that this Act was never put in Execution; nor do I think it could, without a pre∣vious Declarator, finding that these Shires had incur••ed the Dupli∣cation, by failing to pay their Shares; for otherwise, His Maje∣sties Collectors, and Cash-keeper might exact the double, when it was not incurred; and we see that all other Irritancies, even Imposed by the Parliament, such as ob non solutum canonem, require a previous Declarator, and are purgeable at the Bar.

King CHARLES 2. Parliament 2. Sess. 2.

THis Act is Explained in the Observations upon the only Act of the Par. 17 Ja. 6.

SOme Phanaticks having, against the Laws and Customs of Na∣tions, Refused to Depone, when they are call'd as Witnesses against those of their own Opinion; It is Declared by this Act, That such as refuse, shall be banished and fined. Qui testimonium dicere recusant pae∣nalibus mandatis compelli possunt, l. si quando & auth. seq. C. de Testi∣bus, Vid. Ruland. de Commiss. part 2. lib. 2. c. 7. & mortaliter pec∣cant. c. quisquis 11 quaest. 3. cap. 1. X de Test, cogend.

It may be Doubted, whether such as refuse to Depone in mat∣ters of Treason, may not be punished as concealers of Treason; for this is in effect the worst kind of concealing; for others may conceal, because they fear want of Probation, or upon other Designs, with∣out any malice, but this still proceeds from Design; and it seems that in all other Crimes, he who refuses to Depone against a De∣linquent, is as guilty as he who Rescues him by force from the hand of Justice; for the contempt of Authority is equally great in both, and the prejudice arising to the Common-wealth, is the same.

It is Declared by this Act, That nothing that any man Depones against another, shall operat against himself, as to the loss of Life, or member, or Banishment, which seems to be ill conceiv'd; for nothing that a man Depons as a witness, can operat against himself de jure, as to any effect; but it seems the Design of the Parliament has been, that parties should be obliged to Depone upon Conventicles, and Resetting off, and Intercommuning with Rebels, not only as Witnesses, but as Parties; and in the words immediatly before, it is said, that they should be forced to Depone in those things, for the more speedy Execu∣tion of Justice: But to take off all scruple in this, the King by His Letter in anno 1674: allowed His Advocat to Declare, that He

did insist only, ad paenam p••cuniariam & arbitrariam; and that thereupon they might be forced to Depone in these Cases; but it being alleadged that this Declaration was not sufficient to force peo∣ple to Depone: Because 1. Resetting of Rebels imported Infamy, because it was Treason, & nemo tenetur jurare in suam turpitudi∣nem. 2. No Declaration without a Remission past the Great Seal, can secure a man in such Cases; yet both these Defences were Repelled by the Privy Council in the case, Kings Advocat contra Laird of Duntreath, June 30. 1681. For as to the first, It was answered, That some Crimes did defame omni jure, as Incest, Adultery, &c. and in these a man could not be oblig'd to Depone against himself, because the Kings Declaration could not take away the Stigma impressed by the Laws of God and Nature: But in Crimes Introduc'd only by the Municipal Laws, in favours of the King and His Government, the Infamy may be taken away by the Declaration; and where the Kings Advocat Declares, he insists not in it as a Crime, but as an irregular Transgression; The Con∣fession does not Defame, because no Crime is acknowledged. To the Second, it was answered, That there needed no Remission, where the irregularity was not pursued by way of Crime: Re∣missions being only of Crimes, and there was nothing more ordi∣nary, than for His Majesties Advocat in all Courts, to restrict his pursuits to arbitrary punishments, as in the Cases of Mutilations, Hamsucken, &c.

SUch as assault the Lives of Ministers, or Rob their Houses, or actually attempt the same, are to be punished with Death, and Con∣fiscation of Goods; By actually attempting, I understand not nu∣dum conatum, but what the Law calls actum proximum, as the shooting a Pistol, which misgave; and this further Justifies the pro∣cedure against Mr. James Mitchel, who shot actually at the Bishop of St. Andrews; for though this Act was posterior to that Deed, though not to the Process, yet it shews what was the Thoughts of of our Parliament, as to attempts, and so was sufficient to inform Judges, how to Explain the dubious word, Invade or Pursue, us'd in the 4 Act Par. 16 Ja. 6.

BY this Act, the Fines appointed for House-Conventicles, are for every Man and Woman having Land and Heretage, Liferent, or proper Wodset, a fourth part of their valued yearly Rent; each Tennent, twenty five Pounds; each Cottar, twelve Pounds; each Serving-man, a fourth part of their Fee; each Merchant, or chief Trades-man, to be Fin'd as a Tennent; and each inferiour Trades-man as a Cottar; if their Wives or Children be present at House-Conventicles, they are to pay the half of the respective Fines; and if themselves be present at Field-Conventicles, they are to be Fin'd in the double of these Respective Fines; so that though the Act do not specifie Wives and Children, yet they are to be com∣prehended under the word others.

Field Conventicles are by this Act Declared to be Meetings where any shall without Licence or Authority, Preach, Expone Scripture, or Pray in the Fields, or in any House where there are more persons than the House contains, so that some of them are without Doors; which last alternative was added; because some, to shun the double avail, Preached within a little House, many thousands being with∣out.

It has been doubted whether those who were within, and knew not that any were without, can be punished as a Field-Conventicle; for though versabantur in re illicita; yet it was such, a res illicita, as had a determined and different punishment, and it were hard that where the punishment is Death, as it is for the Minister Preach∣ing at a Field-Conventicle, that he could be overtaken, where he could not know his Guilt.

It seems by this Act, that if the House could hold more, though some were known to be without Doors, yet that Meeting could not be call'd a Field-Conventicle, since the Act sayes, or in any House where there be more persons than the House contains, and the Reason inductive of the Act ceases in this case.

By this Act Magistrats of Burghs-Royal are Fineable at the Coun∣cils Pleasure, for each Conventicle keeped within their Burgh; but that which was thought somewhat severe by the Burrows, was, that they should have been Fin'd, where they discover∣ed the Conventicles themselves, since in Law, Diligence can only be requir'd in Magistrats; and in Policy it seems, that this would discourage Magistrats from doing Diligence to discover; Nor is it sufficient that by this Act they have Relief from those who were present at the Conventicle, since these oft-times are neither known, nor able to Relieve.

The Master and Mistres of the House likewise where the Con∣venticle was kept, are lyable to relieve the Magistrats, upon which ground, an Act of Council was made, making the Heretor lyable for the Fines; against which it was objected, that the Parliament 〈◊〉〈◊〉 not the Heretor lyable, but the Master, which is the Lands-lord, who because he is present, may hinder the Keeping of Conventicles in his House, which the innocent Heretor, who may be very remote∣ly absent, cannot.

By this Act the Minister who Preaches at Field-Conventicles is punishable by Death; but the Minister who keeps House-Conven∣ticles, cannot be so much as Fin'd, for he is only ordain'd to find Caution not to do the like thereafter, under the pain of five thousand Merks, or to enact himself to go out of the Kingdom, and not to re∣turn.

By this Act the half of the fines are declared to belong to Sheriffs, Stewarts, Lords of Regality: and therefore by the 17 Act of the 3 Sess. Par. 2. They are ordained yearly to give an account of their Pro∣ceedings to His Majesties Privy Council, under the pain of five hun∣dred

merks: In which Act this Act is Explained as to some other points.

BY this Act, such as offer their Children to be baptized by any but their own Ministers, or by such as are authorized by the Council, in absence of their own Minister, upon a Certificat from their own Mini∣ster, or in his absence, from one of the Neighbou••ing Ministers, are to be fin'd, i•• an Heretor, in a fourth part of His valued Rent; Every person above the degree of a Tennent, having only a personal Estate in an hundred pounds Scots; Every inferiour Merchant, considerable Trades-man, and every Tennent labouring Land in fifty pounds Scots; Every meaner Burges, Trades-man, and Inhabitant within Burgh, and every Cottar in twenty pounds Scots; and every Servant in half a years Fee: But because upon this Act, these who would not con∣form, did, to shun these fines, delay to Baptize their Children; Therefore by the 11 Act Sess. 3 of this Parliament, the same fines are Impos'd upon such as keep their Children unbaptized for thirty dayes.

THis Act is formerly Explain'd in the 1 Act Sess. 3 of the 1 Par. Ch. 2. But for further clearing thereof it may be observ'd that since by this Act Husbands are not made lyable for their fines, as by the 5 Act of this Parliament; It was urg'd, that therefore they could not be fin'd for them; since it was presumeable they were design∣edly left out here, because tho a man may hinder his Wife to go to a Conventicle; and therefore was justly punished by that, for her going, whereas no man can force his Wife to go to Church; and therefore he was not to be punish'd for her in this Act: it was al∣so urg'd, that Laws should not be extended de casu in casum, where it was probable, that the ommission was design'd; and so tho Adjudications and Comprisings were equipollent Diligences by our Law, yet it was found that an Adjudger was not lyable to pay a years Rent for his Entry, as a Compryzer was, because the Statute appoint∣ing the one, had not exprest the other; and therefore an express Statute was made, for extending this to adjudications, which is the 18 Act Par. 2. Ch. 2. and this extension was less favourable, because it was a penal Statute, and it was against the principles of Law, that one person should be punished for another; To which it was answered, That the Parliament had refer'd the Regulation of Conventicles to the Council, and had invested them for this end, with their own full power to prevent the Cheats that might be invented, and the dan∣gers that might ensue. 2. This being a matter of Government, must be interpreted so, as to preserve the Government; and if Wives who were the half, and the more humorous half of Scotland, were allow'd to abstract, all the other Remedies would be ridi∣culous, and they would debauch their Children, Tennents, and Servants, as well as influence their Husbands. 3. In all other Cases they were lyable for their Wives, for Conventicles, by the said 5 Act for Popish withdrawing and Superstitions by the 104

Act 7 Pa. Ja. 6. For their VVives swearing and cursing, by the 3 Act Pa. 1 Sess. 1 Ch. 2. In all which Acts, the Parliament consi∣dered more the good of the Kingdom, than the advantage of pri∣vate parties; and extensions are allow'd in favourable Cases; and there is none more favourable than this, especially since the VVo∣men began the last Rebellion, and since the Council has ordained Men to be lyable, the Countrey was become much quieter. 4. There being a communion of Goods betwixt Man and VVife, it was just that the Husband should be lyable for his VVife, and so he should pay her Debts, whereof this withdrawing was one; and if he of∣fer her to the Magistrats, and do not converse with her, he is to be free, and so he can only blame himself. The Council having Trans∣mitted th••se Reasons to the King. His Majesty found that Husbands should be lyable for their Wives; but Declared that Husbands who were loyal, and would take the Oaths of Allegiance and Test, should be favoured in the exacting of such Fines.

THis Act is Explain'd in the 23 Act Par. 1 Ch. 1. and 23 Act Par. 1 Ch. 2. And the exemption from Taxes here grant∣ed to the Senators of the Colledge of Justice is also al∣low'd to the Counsellours of the Empire, Bocer. de Regal.. c. 2. and to the Counsellours of France, Papon. l. 2. c. 11. and is ex∣tended in both these Kingdoms to their Widows, arg. l. 29. C. ad. l. ••ul. de adult. vid. Jac. Benium. privil. Juriscon. part. 3. n••m. 1.

THis Act is Explain'd in the 16 Act Par. 2. Ch. 2.

King CHARLES 2. Par. 2. Sess. 3.

THis Act is Explain'd in Observations upon the 2 Act Par▪ 2 Ch. 2.

THis Act ordains that no Tutors or Curators to be named or de∣signed to any Pupil, Minor, Idiot, or furious person, shall exer∣cise their Office, till they first make Inventar of the Pupils Writes, Evi∣dents, Means, or Estate, with the consent of the nearest of Kin, of the Fathers side, and of the Mothers side, in manner specifi'd in the Act, and if the nearest of Kin refuse to concur, for making Inventars, they are to be summoned by the Tutor for that effect, with certification that if they be absent, the Tutor is to make an Inventar before the Judge or∣dinary, to the end it might be known what the Tutor or Curator might be Charged with.

Observ. 1. That since the Act only says, That no Tutor, or Cu∣rator of any Pupil, Minor, Idiot, or Furious-person, shall Exercise; It may be doubted, whether a Curator bonis datus, should be com∣prehended under this Act, because he may fall under none of these Denominations, though the Reason of the Law extend to him; as for instance, if a man should Tailʒie his Estate to A. and failing of him to the second Son of B. which failing, to the second Son of C. If A. died, B. being alive, but having no second Son, the King might nominat a Tutor to mannage the Estate, till it were known whether B. would have a second Son; and therefore it had been clearer to have said in the Act, That no Tutor nor Curator should Exercise, &c.

Observ. 2. That the words, no Tutor or Curator nam'd, or design'd, might have been better expressed, by suppressing these words, nam'd or design'd, for that is not the proper words of Stile.

Observ. 3. That since the Act requires only the consent of the nearest of Kin of the Father and the Mothers side indefinitly; This is found by Decisions to be so Interpreted, as that two of the Fathers side, and two of the Mothers side are only requisite, conform to the 35 Act Par. 6 Queen M. And though Tutor Datives were formerly granted summarly by the King in Exchequer; yet by this Act it is appointed, That the Craver of such Gifts shall cite the nearest of Kin upon both sides, that is to say, two of each, as has been also decided.

THis Act is formerly Explain'd in the 14 Act Par. 1 Sess. 3 Ch. 2.

ALL Law having thought fit to use more Citations than one in matters of Importance. By our Forms before this Act, he who Raised a Summons, caused Execute the same by any person he pleased, who is call'd a Sheriff in that part; after which he did get an Act of continuation from one of the Clerks, and a second Summons; both which were called Act and Letters, and were Sign'd by the Clerk; but because that was expensive and troublesome; There∣fore by this Act, these Act and Letters are taken away, and two citations upon the first Summons are declared to be sufficient: as al∣so, because of old, the Execution of Summons did only bear, That the Messenger cited the parties within exprest, without mentioning the par∣ticular parties; therefore sometimes the Execution of another Summons at the same parties Instance, was cast on upon a Summons, which it may be, was never Execute; as for Instance, if I had rais'd a summons of Reduction against B. and another against C. the Executions against B. would have been sufficient against C. though C. had never been Cited, and so would have Interrupted a Prescription, or would have produced any other effect against him, which being alleadg∣ed in a Case of Rowallans; It is by this Act appointed in times com∣ing, That all Executions of Summons shall bear expresly, The Names

and Designations of the parties, pursuers and defenders, and that it shall not be sufficient, that the same do relate generally to the Summons, otherwise the Execution shall not be sustained. And though it was al∣leadg'd, that this was only to hold in Cases of Prescription, but in no other Case; yet it was found to extend to all Citations in∣definitly; and therefore a Citation against Mr. James Alexander, having no Designation, but Husband to such a Woman, and bear∣ing only relation to the Letters within-written, was not sustain'd; but yet the Lords thereafter upon the helping the Execution, allow'd the same, the Messenger having abidden by the Execution.

IT is fit to know that there are three Seals in Scotland, the Great-Seal, Privy-Seal, and Quarter-seal; The Great-Seal is pro∣perly design'd to be appended to Heretable Rights, and the Pri∣vy-Seal for Moveables, and the Quarter-Seal is but the Testimoni∣al of the Great-Seal, and generally it is appended to Papers that are subservient to Heretable Rights, such as Precepts of Seasin, Presentations to Forefaultries, &c. The Chancellour keeps the Great-Seal, The Lord Privy-Seal keeps the Privy-Seal, and the Di∣rector of the Chancery keeps the Quarter-Seal; for as the Quarter-Seal is but a Seal subservient to the Great-Seal, so the Director of the Chancery, is an Office•• depending upon the Chancel∣lour.

The Servants of the Chancery, and Privy-seal Office, having been in use to give out the Papers that were to pass their Registers, before they put them in a Minut-book; so that such as desired to know what passed those Seals, could not know the same; there∣fore they are by this Act ordain'd to Registrat all Writs that pass their Office, before they give them out, and to make a Minut-Book.

Nota, That in the Chancery-Chamber there are two kinds of Re∣gisters, one of Parchment, for Charters, and such Heretable Rights, and other two in Paper, one for Temporary Rights, such as Gifts, Pensions, &c. In which likewise, Adjudications, and Comprisings are included; For though these be Heretable, yet they are but Temporary Rights, being Redeemable; there is another Paper Re∣gister likewise for Retours.

Of old, the precept of Seasin did pass the Quarter-Seal, But be∣cause that was expensive and troublesome, therefore they are now ordain'd to be ingrossed in the Charter, and so pass the Great Seal only.

By this Act likewise; Charters which were formerly in a large Skin of Parchment, are by this Act ordain'd to be Written by way of a Book, that they may thereby be the more commodiously Read, the Line being very much shorter in the one than in the other.

BY an old Custom in Scotland, Burgesses might have arrested Strangers, if they found them within their Burgh, till they faud Caution to pay them what was due; But by this Act, this is Restricted to Horse or Mans Meat, Abuilʒiments, or other Mer∣chandise, for which they have no security; which Act was found not to extend to such as lived upon the Borders of either Kingdoms. The Custom having been amongst the Borderers of each side, to cause one another find Caution, judicio sisti & judicatum solvi, lest otherwise the English might have drawn the Scots to London, or the Scots the English to our Session, Laws unknown to either; and therefore since the English continued this Custom after this Act of Parliament, it was fit that the Scots should have the like priviledge of arresting such as dwell in England, January 13. 1676. Bell con∣tra Robertson; and it was found by the Council, that the same Cu∣stom had been, and therefore should be allow'd to Sheriffs, and o∣ther Magistrates without Burgh, so that the Sheriff upon the bor∣ders may arrest any English-man till he find Caution judicio sisti & judicatum solvi.

By this Act Burghs of Regality and Barony, are discharged to arrest, or Incarcerat any person who are not Burgesses, or Inhabi∣tants in their Burghs for any manner of Debt, which seems to im∣ply that they may arrest their own Burgesses, who are Inhabitants: Likeas de facto, they use to arrest such. This Act having Discharg'd all such arrestments, except for Horse or Mans Meat, Abuilʒi∣ments, or other Merchandize; The Lords February 22. 1677. Found that a Merchant could not arrest a stranger within Burgh, until he should find Caution to answer as Law will, for payment of the price of a Bargain of Victual, which had fallen to the said Burges as a part of his Fathers Stipend, and consequently was of the nature of other Ferms, though it was alleadged, that this did fall under the word Merchandise; and that Corn so falling to be due, might as well fall under this Act, as a Merchands Shop falling under Executry or Legacy.

THis Act Ordains that no person shall Ordain, or be Ordain∣ed Ministers, except in the way prescriv'd by the present Government of the Church, under the pain of Banishment and Con∣fiscation, and whosoever shall be married within this Kingdom, by the foresaid persons; or any not authorized, they shall amit and lose any Right or Interest they may have by that Marriage, jure mariti vel jure relicti, and that by and attour the penalty contained in the Act 1661 which is the 34 Act Par. 1 Ch. 2.

Upon this Act His Majesty having Gifted the jus mariti of Hume of Kimmorghame, who had Mar••ied the young Lady Aiton, and a Decla∣rator being pursu'd at the Donatars Instance· It was alleadg'd, That first, The person who Married them had a Licence from the Arch-bishop of St. Andrews to Preach. 2. That the jus mariti was not declared by this Act to fall to the King, but only that the Husband had amitted the same; and that the King can have Right to no Con∣fiscation, except where the same is expresly declared to belong to Him by the Statute, which inflicts the Confiscation. To which it was answered, That as to the first, no man could Marry any with∣in the Paroch of any Minister, without leave from that Minister, who could only understand whether the parties might be Married lawfully; nor is the being ordained a Presbyter sufficient, since that gives only power to Preach, but not to Baptize, or Marry; Marriage especially requiring Proclamation of Bonds, which is de officio Parochi. To the second it was answered, that by Law all Confiscations cedunt fisco, whether the Act appoint so or not, this being the very nature of Confiscation, as is clear by Peregrin. de jur. fi••••. lib. 4. cap 8. num. 9. For cui competit accusatio, ei desertur poena; nam poena est effectus tantum accusationis; and Penalties being introduc'd in sol••••ium ejus cui fi•• injuria, that should belong to the King, to whom the Injury was done. 2. The design of the Act was to pu∣nish such as Transgressed, and contemned the Government of the Church, whereas it were no punishment for the Husband to lose his jus mariti, if the same fell to the Wife. 3. If it fell to the Wife, she was uncapable of it, being in the same Delict. 4. Nothing by our Law can subsist in the person of the Wife; and therefore if the Husband do Renounce his jus mariti in favours of the Wife; it does by our Law return to the Husband. 5. If this were allow'd, not only might the Wife in other Cases, and particularly in this be Re∣warded for Transgressing the Law, since for Marrying irregularly, she would have ••••ight to the jus mariti of her Husband; but this would prompt all humorous Women to Marry irregularly, that they might get a jus mariti, and Administration of their Husbands Estate, and Dominion over him. 6. If this were allow'd, the Husbands Creditors might be easily cheated, for they might Marry disorder∣ly, and so their Creditors could have no Right to the jus mariti, and this would open a Door to those Frauds, against which our Law has so seriously guarded.

It may be doubted from these words of the Act, Whosoever shall be married within this Kingdom, that such as are Married without the Kingdom, incur not this Penalty, though they should go up∣on Design, which if it were allow'd, would frustrat absolutly the Act, for the Transgressors might still go over the Border and be Married: and by the said 34 Act Par. 1. All persons having their Residence in Scotland, are discharged to get themselves married in Eng∣land or Ireland, without Proclamation in Scotland; and since the Law looks upon actus elusorios, as inefficaces; so that if a man

should go out of Scotland to shun a Citation, to the end another Compriser may be prefer'd, coming back after he is Cited by the first upon sixty Dayes, to the end the second may Cite him upon a shorter time, and so be able to lead the first Comprising, the first Citation would be preferr'd, and consequently it were unjust that this which is a greater Collusion should be allow'd.

THis Sumptuary Law against Apparrel is restricted, and Ex∣plained by the 3 Act Sess. 4. of this Parliament, and the whole Act is now in Desuetude.

THis Act is Explain'd in the 6 Act Sess. 2. of this Parliament.

THis Act is Explain'd in the 17 Act Par. 1 Sess. 1 Ch. 2.

THis Act is Explain'd Act 4 Par. 3. Q. Mary.

IN all Retoures it is usually exprest, whether or how the Lands are in his Majesties Hands, as if they be in his Majesties Hands, by vertue of Ward, the Retour bears it, but since the Retour did not use to bear the Taxt of the Marriage, or of the Feu cum maritagio; Therefore this Act appoints these to be exprest, and the reason why I think these were not exprest formerly, was because Taxt-Ward was a very late invention, and Lands holding feu cum maritagio is a very extraordinary thing, and so the inquest took no notice of either.

THis Commission for Plantation of Kirks differs nothing from the Commissions given by the other Parliaments, but only in that the Power whereby Titulars were forced to sell to each Heretor his respective Teinds is only to last for three years after this Act, so that all that great design ends here, except it be reviv'd by the next Commission; but if the impediment during that time, flow from the Titular by reason of his Minority, or other inability, in that case the Heretor who offered to buy his own Teind, is to have place to buy his Teind as soon as the impediment is remov'd; but the Act does not express within what time: and therefore it would seem, that except the Heretor offer to buy during the Minority, and did really renew the offer to buy, immediatly after the Minority, or inability was over, he cannot have place to buy. It is also declared, that if the Heretor be Minor, and his Tutors neglect to buy his Teinds, the Minor shall have action for 2 years after his minority to compel the Titular to sell them; but the Act is ill con∣ceived, not mentioning Curators; but the giving power to buy af∣ter minority, includes both; but it may be doubted whether this

should extend to Idiots and fatuous persons; or where there is tu∣tor bonis datus ob non existentiam haeredis: and it seems the liberty to buy, should be extended to their Heirs for two years after they succeed, or two years after furious persons Reconvalesce.

THe King in anno 1669. by a Commission under the Great-Seal, did impower Noblemen and others to Regulat the Ju∣dicatures; and these Regulations set down by them, are here Ra∣tifi'd: But it was objected, that this could not have been done in Law, because by the Institution of the Colledge of Justice, and particularly by the 93 Act Par. 7 Ja. 5. The Session has power to make sick Acts, Statutes and Ordinances, as they shall think expedi∣ent for ordering of Processes, and hasty expedition of Justice: And it was thought strange how Noblemen and Gentlemen, who under∣stood not Forms of Process, could Regulat incident Diligences, and the ordinary Terms in Reductions and Improbation, which with many other things specified in these Regulations, were so much mat∣ter of Form, and were so little to be known by the strongest Rea∣son that the greatest Lawyers did oft-times understand less of them, than the ordinary Leaders of Processes.

The first thing in these Regulations is, the Roll in which all Causes are to be taken up, and are Ordain'd to be Discuss'd according to the Dates of the Returning of Processes; which Roll was former∣ly in use, though by the 12 Article it was here added, That if any Cause should be call'd by anticipation out of its due place, the Pursuers Advocat might refuse to insist, or the Defenders Advocat to answer; and upon this Article it was, that the Lord Almond appeal'd to the Parliament; because in the Action at Dumsermlings Instance against him, there having been a Debate in the Outter-house, Reported to the Lords, they had ordain'd the Cause to be summarly heard before themselves in praesentia; Whereas by the 5 Article, where the Lords upon intricacy, Ordains a Cause to be heard in praesentia; the Process should have been insert in the Roll of the Inner-house, ac∣cording to the Date of that Deliverance; which Article being con∣troverted: It was alleadg'd that by this Article, Almonds Procu∣rators were not oblig'd to Debate. To which it was answered, that though where a Cause is Ordain'd to be Inroll'd, it must be heard according to that Date; yet that did not hinder the Lords to call in any Cause for clearing the Terms of a Debate in the Outter-house, Reported to them, before they give their Interlocutor there∣in, which, as needing no Inrolment, falls not under this Article▪ and this Course of Calling in Advocats summarly, for clearing some Points, is ordinarly us'd without Inrolling Causes in the Inner-house, Roll; but after a Cause is once Inrol'd in the Inner-house Roll, it must be heard according to its Date.

The Council sometimes likewise when they sustain themselves Judges Competent to Ryots, do, if any Defence be propon'd be∣fore them in point of Right, remit the matter of Right to the Lords

of Session; but ordain it to be discussed summarly, without at∣tending this Enrolment, to the end, that when the matter of Right is Discuss'd▪ they may know how to Judge the Ryot.

As to the 16 and 17 Articles, Vide Observations upon the 9 Act Sess. 3 Par. 1 Ch. 2.

By the 22 Article, it is appointed, That the Advocat who Returns the Process shall give out all the Papers, whereupon he resolves to found his Defences; which was done to prevent the Pursuers being forc'd to take a time to see those Papers, upon which the Defence was founded; but this was found unpracticable, because the Defenders Advocats knew not what would be found Relevant, or not; and therefore the Defenders Advocat does now propone his Defence, and if it be found Relevant, he takes a Day to prove it as for∣merly.

The Difference betwixt Outter-house and Inner-house Advocats, which was appointed by the Regulations is omitted in this Act, which Confirms the Regulations without that distinction.

Before this Act in Incident Diligences, four Terms were allowed for producing the Writs, which were accidental∣ly crav'd to be produc'd: The first was Letters, with Certifica∣tion, that if the Havers produc'd not, other Letters would be direct a∣gainst them, Charging them thereto simpliciter. 2. That Letters of Horning would be direct. The third was Horning. The fourth was Caption. But by this Act, the first Diligence is appointed to be Horning. The second Caption, which may seem too short; for it is hard that third Parties should, without any previous advertise∣ment be Charged with Horning; for though no Escheat will fall on this Denunciation; yet the Rebel will upon this Denunciation be debarr'd, ab agendo, beside other inconveniencies.

As to the Regulations concerning the Justice-Court, it has been doubted, whether they extended to Justice-airs, or Circuit-Courts; and therefore it was doubted, whether a Citation given to a Pan∣nal who is in Prison, might be given upon fewer than fifteen dayes in a Justice-air, and the Judges inclined to think, that these Regula∣tions extend to Justice-airs, as well as Justice-Courts, as to all the Articles here exprest, since Orders are given by the Parliament for regulating Justice in these Regulations, which shew the Parliament design'd to extend them to both.

From these words in the ninth Article, That the Chancellour of the As∣size mark how every individual Assizer shall Vote whether he Condemns or Asseilʒies, it clearly follows, that no Assyzer in Criminals may be non li∣quet: and if this were allow'd in one, it might be in all; & because this was not necessary formerly; Therefore by the 63 Act Par. 8. Ja. 3. It was or∣dain'd that when a Summons of Error was rais'd, each Assizer was to set down who assoilʒed, and who Condemned; but because they might forget, or for fear of punishment, might be unfaithful in this;

Therefore this Act appoints, That in the first Verdict it shall be mark∣ed who Condemned, and who assoilʒed.

Albeit this Act appoints that the Chancellor shall mark whether e∣very man assoilʒes or Condemns: Yet it is thought the omission of this would not annul a Verdict in favours of the King, that being only introduc'd in favours of the King, to the end that His Maje∣sties Advocat may be instructed whom to pursue in a Summons of Error, when a party is wrongously assoilʒed.

By the 11 Article it is appointed, That when any Summons of Ex∣culpation is Executed against any party, that at the same time the Names of the Witnesses and Inquest should be given, to the end the party may know what to object against the Witnesses: Upon which Article it was alleadged that when an Exculpation was rais'd against the King, the Witnesses Names should be given to his Advocat likewise; and which the Justices found to be necessary in March 1680. For the Act being general as to all; and there being as great reason that the King should know those who are to be led against Him, as any pri∣vat party, He ought to have the same measure: and whereas it was objected, that it were a very severe thing, that a poor Pannal might not lead any Witness, even during the Debate, though his Name had not been given in List; yet this has no weight, since the Act is so clear in general Terms as to all: and it may seem as unreasonable that the King should not be allow'd to lead any Wit∣ness to prove a Crime, if he find him in the Court the time of the Debate; for the Pannal may much better, know who can prove his Defence, since he behov'd to know them, if they were present, than the Kings Advocat can know who were present when the Crime was committed; and though there may be some inconvenience in this, for one particular Pannal, yet in the general there is great advantage in this to Pannals, the King being thereby forc'd to give in the Names of his Witnesses, so that the Pannal may not only know how to object against them, but even how to practise them: and whereas it may be objected, that by this procedure there be∣hov'd to be progressus in infinitum, since the King might Cite Wit∣nesses to cast the Pannals Witnesses; and the Pannal behov'd there∣fore to be allow'd to cast the Kings Witnesses, and to have Cita∣tion for that effect. It is answered, that this might as well be urg'd against all Reprobators; nor does this hold here, for the Judge should not allow such Citations, save one to each party. Because Messengers in Executing Criminal Letters, gave sometimes only copies of the Libel it self, and yet returned Executions to His Majesties Ad∣vocat; that they had likwise given Lists of Assizers and Witnesses▪ Therefore the Justices declar'd in February 1681. by an Act of their Sederunt, that if the Pannal should produce a Copy under the Mes∣sengers hand of the Libel, except the List of the Assizers and Wit∣nesses Names were upon the same Paper with it, they would not sustain the Execution, though bearing That Lists of Witnesses and As∣sizers were given.

THis Act is Explain'd in the 1 Act 1 Par. Sess. 3. and 7 Act Sess. 2 Par. 2 Ch. 2.

COmprisings were at first Invented to pay Debt with a suitable proportion of Land, and the Sheriff was to adjust the sums due with the Lands Comprised; but thereafter great Estates being Comprised for small Debts, the Parliament thought fit by this Act to Ordain, that for the future, not a Messenger who was Judge in Comprisings; but the Lords of Session should by a Process be∣fore them, Adjudge as much of the Debitors Lands to the Creditor as would satisfie his principal Sum and Annualrent, with a fifth part more, because the Creditor was forc'd to take Land for Money, where∣as by the Common Law, aliud pro alio invito creditore solvi nequit. And albeit this Act expresses only that this fifth part shall be beside the Composition to the Superiour, and Expenses of Infeftment; yet certainly the Creditor must likewise have all the Expenses bestow'd upon the Process; for as this is reasonable in it self, so that expenses tends to the procuring of the Infeftment.

Observ. 1. This Act came in to the Parliament simply in these Terms, and the equity of it was prest from the Custom of other Na∣tions, and particularly the Common Law, where the Praetor did ad∣judge the Debitors Land proportionally to the Debt; but it being strongly urg'd by the Lawyers, Burgesses and other Members who were Moneyed Men, that it was most unreasonable to force the Creditor to take Land, except the Debitor should produce to him a good Progress and Security; for both, to be forced to take Land, and yet to want a sufficient Right thereto, was altogether unrea∣sonable: Therefore the Parliament ordain'd, that if the Debitor did not compear and produce a sufficient progress, and Renunce the Possession, the Debitor might Adjudge the whole Estate as formerly he Comprised it; and this has almost Evacuated the whole Act; for the most of Debitors are unwilling to produce a Progres••, and renunce Possession; and therefore most Lands are now ad∣judg'd as they were formerly apprised; and in December 6. 1681. It was found that an Adjudication led for a fifth part more in absence of the Debitor, was null; since the fifth part more was only to be given, where the Creditor compeared, produced a Progress, and Renunced; albeit it seems that this alternative being introduced in favours of the Creditor, it ought to be optional to him to choose either.

Observ. 2. That the Legal in these Adjudications is only five years, whereas it was seven in Comprisings, for the danger being less▪ because of the said Commensuration, it was just that the time for Redemption should be shorter; and though it be not exprest that the foresaid five year shall not run against Minors, and that it may seem it should not run against them, in respect of the short commensuration, and that it seems unreasonable, that a Creditor be∣ing

forc'd to take so little Land, and should yet be forced to be unsecure during a whole Minority, yet the said Legal in Adjudications will not run against Minors, for Adjudications having come in place of Apprisings, are to be regulated by the same Rules, except where it is otherwise provided by express Law; and therefore Adjudica∣tions cannot be led upon Bonds, bearing Requisition, except Re∣quisition be first used, this being formerly necessary in Compri∣sing••, February 11. 1680. Gordon contra Hunter: albeit it was there alleadg'd, that an Adjudication was a more solemn Action, (requiring previous Citation of Parties) than a Comprising, and so there needed no Requisition in Adjudications, as in Appris∣ings.

Observ. 3. That where Land is Decern'd proportionally to the sum, with a fifth part more, the Creditor is to possess the Land in satisfaction of his annualrent, during the not Redemption, without being lyable to Restitution, or Compt and Reckoning; and there∣fore when the Act does thereafter say, that he shall be pay'd of his principal sum and annualrent, that must be understood in the Terms foresaid, viz. that the Rent of the Land shall be allowed for his an∣nualrent, without Restriction.

Observ. 4. If the Creditor acquire once Possession, he cannot thereafter use personal Execution; which I think should be under∣stood only where the Debitor compears, both because this Clause is adjected to that part of the Act which presupposeth Compear∣ance; and before the Clause punishing his absence; and because it were unjust that a Debitor should have advantage, when he will not consent. It may be also doubted, whether though the Debitor compear, he may be free of Personal Execution, when the Land adjudged is not able to pay the sum, according to the Terms of the Act; for the reason of the Law ceaseth, viz. That a man should not use Execution, when he has attain'd payment: and thus albeit of old in Comprisings, the Compriser could not use personal Execution, where he was in possession, except he Re∣nunced the same, July 23. 1633. yet where he had not attained the possession, albeit the Comprising was expir'd, he might have us'd personal Execution by Horning and Caption, though not by arrest∣ment and poinding, December 7. 1631.

Observ. 5. That since this Act Declares, that neither the Su∣periour nor Adjudger shall be prejudged by this Act; it clearly follows, that the Superiour may in this case, as in Comprisings, Redeem the Adjudger by payment of the sum, it being unjust that a stranger Vassal, should be forced upon him, when he is content to pay what is due.

Quaritur, Whether albeit by this Act, no Comprisings can be led of Lands, not already Comprised; if yet Adjudicati∣ons may not be led, even where Lands are formerly Comprised; for this is not expresly discharg'd: and this seems to have been intro∣duc'd,

in favours of the Creditors, who may make their own Ele∣ction, and I think they may.

Whereas it is Declar'd, That the Superiour and Ad∣judger, shall be in the same case after Citation in the Process of Ad∣judication, as if Apprising were led, and a Charge given. It may be doubted, how a simple Summons can be equivalent to an Appri∣sing and Charge; for if that were sustained, he who had rais'd the first Summons would be preferr'd to him, who having rais'd a po∣sterior Summons, had got the first Decreet; because the first Sum∣mons would be equivalent to an apprising; and consequently to a Decreet of Adjudication: But the Lords have very justly found that the meaning of this Clause is, That the first step in an Adjudica∣tion shall be preferable to the second step in a Comprising, and so forth: But not that the first step in an Adjudication shall be equiva∣lent to a compleat Comprising: and yet it still remains, that a Sum∣mons in an Adjudication is equal to a Denunciation in an Apprising; for tho a Denunciation be the more solemn Act, yet a Summons publickly call'd in the House, does likewise make the Diligence ve∣ry notour.

King CHARLES 2. Parliament 2. Sess. 4.

THE King having Designed to improve Salt made in Scot∣land, whereby poor people were maintained, and the Money kept in the Countrey, did buy the Salt made in Scotland, and ordain it to be sold out at reasonable Rates, which was called the pre-emption of Salt; but the Servants and Officers imployed in venting the Salt, having taken exorbitant prices, as was alleadg'd, and remote places, such as Galloway and the Highlands being ill furnisht, since it was difficult to keep Store-houses every where, and many fearing, that this might be a prepa∣rative for the pre-emption of Coal, Corn, &c. His Majesty was therefore pleased, for removing all such jealousies and prejudices, to condescend by this Act, to discharge the said pre-emption, and all pre-emption of Salt in time coming, but to give some advan∣tage to our own Salt above forraign Salt, our own Salt is declared free of all Excise, and imported Salt is to pay fourty shilling upon every Boll.

THis Act is Explain'd in the Observations upon the 7 Act 3 Sess. Par. 1 Ch. 2.

Nota, That before this Act the King had right to twenty shilling of Custom for every Tunn of imported Beer, by the 179 Act Par. 13 Ja. 6.

MAny Noblemen and Gentlemen having been ingaged for Debts contracted by our late Rebellious Parliaments and Commit∣tees, and not being able to shun these Debts, because they had given their privat Security for the same; the Parliament 1661. and posterior Parliaments suspended Execution upon them, but could not in Justice take away the Debt; Therefore for payment of this Debt, an Imposition was granted upon Tobacco to be imployed for payment thereof, as being the most unnecessary Commodity that was imported; and yet this being complained of as a Monopo∣ly, or at least a great Imposition upon a Commodity, which though at first useless, was now by Custom necessary; His Majesty did therefore Discharge the said Imposition, and allow the importing of Tobacco in all time coming, free of all Custom and Imposition, ex∣cept the ordinary Custom.

Notes

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