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

King JAMES the third, Parliament 6.

THe design of this Act is, to shew that in Reductions of De∣creets of inferiour Courts before the Parliament, the De∣fender is not allow'd to propone Defences, that were competent and omitted in the first instance; and yet in Reductions of Decreets of inferiour Courts, before the Session, al∣leadgances, though competent and omitted at the time of the first De∣creet, are receivable by the Lords, especially if the Decreets be in absence

Nota, That Dilators might have been then propon'd, separatim; but now after a Dilator is repell'd, all the other Dilators must be pro∣pon'd together.

Nota 2^o. It is clear by this Act, that Decreets of inferiour Courts were reduc'd before the Parliament, but these Lords were then not what our Session is now; the Session being then a Committee of Parliament, as is also clear by this Act.

Nota 3^o. That Brieves of mort-ancestrie (which are now call'd Brieves for Serving of Heirs, were then led and expede in Justice-airs, though it was still by an Inquest, as this Act bears; and if then Difficulties did occur in serving of Heirs, it is clear that supe∣riour Courts might give their opinion upon these, though they can∣not serve an Heir; and thus two several persons having rais'd Brieves for serving themselves Heirs to Captain Ross, they were Advocated from the Macers; and it was Debated before the Lords, what Probation was sufficient to exclude the King as ultimus Hares, al∣beit it was alleadg'd, that this was only proper to be De∣bated before the Inquest, and yet though the Lords may deter∣mine, how a thing may be proven, & ipsum modum probandi, as in that case where the Debate did run, whether the being ha∣bit and repute Cousins, was sufficient in agnatione antiquâ; yet the Lords in the case Forrester contra the Heirs of the Laird of Wrights-houses,

refused to consider the Probation it self, and the Objecti∣ons against the Writs produc'd, but remitted the same to the In∣quest; though it was alleadg'd, that it being objected here, that the Writs produc'd for Probation were vitiated, the Lords could on∣ly judge this as being species falsi; but withal, the Lords declared, that if the Inquest desired to know whether the Papers were vitiat∣ed, they would give them their opinion therein. The Lords of the Session themselves have been sometimes the Inquest, as in Serving King CHARLES the First, Heir to Queen Ann his Mother, and King CHARLES the Second, to the Duke of Lenox; though it was alleadg'd that this was inconvenient, because no other Judge could reduce their Verdict; but certainly, either the Parliament might have reduc'd it, and found them guilty of Error, or the Lords of the Session might have reduc'd their own Verdict, upon new Probation; for in this case they proceeded, not as Su∣pream Judges, but as Members of Inquest. The Parliament have been sometimes the Inquest, as in Serving the Earl of Mar Heir to his Mother.

BY this Act, the Party put to the Horn for Slaughter, is to find Caution before he be Relax'd, not only to compear to un∣derly the Law, but to pay twenty pounds for his Escheat Goods, and this is to this day exprest in all Relaxations.

VId. observ. on Act 38 Par. 4 Ja. 4.

BY this, and by the first Act of this Parliament, it is clear, that that Parliament did Delegat some of their number, not only in some particular cases, but with a general power to repre∣sent them in all things which seems hard; for that were to make and create a new Parliament: but here their power was Delegat∣ed only as to Debatable cases, for these Lords were then in place of the Session; and I have heard it Debated, if the Council could Delegat their Power, to any of their number, as to all things, for that were to make a new Council; and since the King impower'd only nine to be a Quorum, they might not impower a fewer num∣ber; nor were it fit for the People, to have the Supream Power committed to so few, nec potest delegatus delegare: Nor can the Justices, nor Commissioners for Teinds, make such Committees, though they are as Supream as the Council. vid. Observ. on the last Act 10 Par. Ja. 3.

BY this Act it seems that the Council may reduce the Verdicts of Inquests and Sentences of the Justices, though the regular way of questioning Assizers, who assoilʒe, be by a Summons of Error before the Justices, and a new Inquest of fourty five persons; and de facto, the Council do cancel such Verdicts and Sentences, before themselves, as they did in George Grahames

Case; and ordinarly they mitigat the Sentences of the Ju∣stices.

Nota, The Books of Regiam Majestatem, are by this Act cal∣led His Majesties Laws, and the place here related to, is lib. 1. R.M. cap. 14.

BEcause the Riches of this Realm, consists chiefly in our Fishing, therefore Bushes are ordain'd to be made, since these are able to ride out in Storms, which lesser Vessels cannot do, and it is best fishing when the Waters are troubled; this is renew'd by the 49 Act Parliament 4 Ja. 4.

THough by this Act, he who tines his Action is to pay fourty shilling of expences; yet the modification is left arbitrary to the respective Judges, conform to the Civil Law, which ap∣points condemnationem in expensas & litium damna contra temere li∣tigantes Inst. hic. depen. temerè litigantium §. 1. And by the 43 Act Par. 11 Ja. 6. The Defender pays twelve pennies out of every pound to the Lords; and the Defenders expences at the Lords modification.

Notes

• ACT 42.
• ACT 43.
• ACT 44.
• ACT 47.
• ACT 48.
• ACT 49.
• ACT 50.