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

K. JAMES III. Parliament I.

BY this Act, the third of the KING'S Rents of Assyse; that is to say, the third of His Lands and Customes, belong to the Queen as her Dow∣rie, or Terce allenarly, which is conform to the Common Law of this Kingdom, by which the Wife has right to a Third of all the Lands, in which a man dies Infest, and that though she be otherwise pro∣vided, if she be not expresly secluded from it by her Con∣tract of Marriage, so that it seems the Queen would have had right to a Terce of proper Lands belonging to the King, though this Act had not been made. But now by the 10 Act Parl. 3 Ch. 2. If a Wife be provided to a particular Provision, though never so small, either in her Contract of Marriage, or in any o∣ther Write, she will be secluded from a Terce, except her Terce be expresly reserv'd to her by and attour the particular Provi∣sion.

Nota, The Rents of Assize, comprehends the Kings Customes and Lands, as was found, Decemb. 9. 1466. and March 11. 1500. Ogil∣vie contra Gray.

It may be doubted whether this Act was Temporary, relating only to this Queen, or if any Queen of Great-britain will have

right as Queen of Scotland, to a third of the Property, conform to this Act, since the Act seems to be reasonable in it self, and that the Queen is founded in this right by the Common Law, and if this had been only a Temporary Right, relating only to this Queen, it would not have been inserted amongst the general Laws; or at least, it would not have been generally conceiv'd, as this Act is, in these Terms, The Dowrie of the Queen, for terminus indefinitus aequi••ollet universali. I find, that in the 191 Act Parl. 13 Ja. 6. Queen Ann is provided to the third of the Property, but not to the third of the Customes, but that being by express paction, dero∣gats not from this Law.

SOmetimes Benefices Ecclesiastick, were bestow'd upon secular persons, who were call'd Commendators, because the Benefice was commended and intrusted to their oversight, and they were Procuratores in r••m s••am & habebant tantum detentionem & poss••ssio∣nem; but were not Proprietars, and so could not Dispone, Ro∣man. Concil. 350. And because Commendators were but Trusties or Tutors; Therefore Rights made by them, though with con∣sent of the Chapter, are no longer binding in our Law, than du∣ring the Commendators own Right: And by this Act, these Com∣mendams are discharg'd, and yet the Deeds done by them, are not annull'd; and therefore many Rights made by Com∣mendators since this Act, are sustain'd as valid, though they were not Proprietars.

By the Canon Law, only the Pope could grant commendam per∣petuam, and the Bishops could only grant Commends for six Moneths, c. Nemo. Elect. l. 6.

THe pain of Lawburrows here exprest, is hightned by the Act 166. Par. 13 Ja. 6. by which every Earl or Lords Penalty is made two thousand pounds; every great Baron, a thousand pounds; every Free-holder, a thousand merks; every Fewar, five hundred merks; the un-landed Gentleman, two hundred merks; and the Yeoman, one hundred merks, which last Act is now observ'd: and though Penalties be exprest here, against breakers of Lawburrows, found to Church-men, and that there be no men∣tion made of them in the last Act, yet an Arch-bishop, or Bishop, can pursue now for the same penalty that is due to an Earl: and Bi∣shops and their Wives are allow'd the same Solemnities at their Fu∣nerals, that are allow'd to Noblemen and their Wives, by the 14 Act 3 Par. Ch. 2. And though there be no mention made here of Dukes and Marquesses, yet the priviledge granted to Earls, is ex∣tended to them.

2^o By this Act, the Penalty is to be apply'd to the King, and is due by and attour the Reparation due to the person les'd; but by the last Act and the present Custom, the Penalty is to be di∣vided betwixt the King and the Party, and though by this Act the Master is free, if he present his Servant, who breaks the

Law-burrows. Less than the Law-burrows; that is to say (he who found the Lawburrows) bring the Trespassors to the King or She∣riff, within fourty days, Dominus noxali judicio servi sui nomine con∣ventus servum actori noxae dedendo liberatur; yet by our present Cu∣stom, the Master finds Caution, that the Raiser of Law-burrows shall be skaithless from him against whom it is rais'd, and his Men-Tennents and Servants; and therefore the Master seems now lyable, though he should present his Servants.

Albeit these be the ordinary Penalties allow'd, where there is no other proof of the Danger, then the Oath of the Complainer; yet if the Complainer prove Threatnings, the Council or Criminal Court, may ordain surety of Law-burrows, to be found upon such sums as they think proportional to the danger. Vid. Not. on Act 129 Par. 9 Ja. 1. Supra.

THough by this Act, all Summons are to be on twenty one days Warning; yet all Summons that are priviledg'd by their own Nature, or the Lords Deliverance, come in upon six days. vid. Hope Form of Process; and by an Act of Sederunt, July 21. 1672. It is declar'd that no Actions can be priviledg'd, ex∣cept Removings, recent Spuilʒies, recent Ejections, Intrusions, suc∣ceeding in the Vice, Exhibitions, Causes alimentary, Summons, for making forthcoming, Transferrings, Poyndings of the Ground, Wal∣kennings, special Declarators, Suspensions, Prevento's and Transumpts, all which, and all second Summons in all Actions, are to come in up∣on six days warnings, except recent Spuilʒies, because by the 65 Act Par. 6 Ja. 4. these were to come in on 15. days; Ejections, In∣trusions and succeeding in the Vice, which are of the nature of re∣cent Spuilʒies: But since this Act appointed all Summons to come in upon 21. days; dubitatur, how the Lords could have priviledg'd any Summons upon fewer days, though there was an old immemo∣rial Custom for this, prior to this Act of Sederunt; and it will be fit to Ratifie this Act of Sederunt in the first Parliament.

By that Act of Sederunt likewise, second Summons may be ex∣ecuted against persons within Edinburgh, or the Suburbs thereof upon twenty four hours. Vid. Observations on the Act 65 Parl 6 Ja. 4.

THis is abrogated by the Union of the Nations.

MOney is yet escheated to the King and his Customs, if taken out of the Countrey without a Warrand; but that part of the Act which allows a Noble for every private man's expence, is in Desuetude for now every man is allow'd to carry out what may defray his Expence; and that part of the Act, appointing every man to make Faith, and swear that he carries no Money out with him, is also in Desuetude: but any man may be pursued for hav∣ing carried out Money, and his having carried out, and the quan∣tity may be proven by his Oath. We see also in this Act,

that Seculars could not Judge Ecclesiasticks, for Ecclesiasticks were to be Judg'd by the Official, that is to say, the Bishops Judge, in whose place the Commissars are now come, and this priviledge descends to Church-men from the Canon Law, c. 2. de judiciis: But since the Reformation, this Priviledge fell, for now all men whether Secular, or Ecclesiastick, answer to the Civil Judge.

The great reason why our own Coyn should not be carried out is, because our Money is finer nor forraign Money, being eleven denier fine, and so is constantly Exported, and being melted down into forraign Coyn, is brought home again to us, at a greater extrinsick value; but yet because it might be doubted if this pro∣hibition extended to the carrying out of all Money that is current, or if that which is not current may be carried out▪ such as Ry∣als, &c. For the carrying out of Gold and Silver, is generally ordain'd to pay Custom when it is carried out, by Act 15 Par. 1 Ja. 1. but by the 149 Act Par. 13 Ja. 1. The carrying out of all Gold and Silver, Coyn'd or Un-coyn'd, infers escheat of the Gold and Silver so exported. Vid. not. on Act 49 Par. 3 Ja. 1 Supra.

King JAMES the third, Parl, 2.

BY this Act Noblemen and Gentlemen pretend to be free from Custom of what is imported for their own use, as to which, I have insert this Paper.

Reasons, why the Nobility, Barons, and other Heretors in Scotland, are lyable to pay Customs and Excise, for what Commodities they bring in, though for their own private use.

OUr Laws and Acts of Parliament, have granted to His [ 1] Majesty, the Custom of all Goods, exported or to be im∣ported, as is clear by the 251 Act 15 Par. Ja. 6. The Words being, That His Majesty, with consent of the No∣bility, Council and Estates; have ordain'd that all Cloath, and other Merchandice, brought into this Realm, shall pay Custom, &c. And therefore the King being, as to this, founded in the Rule, all must be lyable, except where there are clear exceptions derogating from the general Concession. Likeas, by an express Statute, 14 Act Par. 1 Ch. 2. The Customs of all Goods, are Confirmed to the King. And a special, A. B. C. Of all Customable Goods, expressing what each species is to pay. In which Act there is no exception of any person whatsoever.

By the foresaid Act 251 Par. 15 Ja. 6. Customs are to be paid [ 2] to the King, according to the use of any other Kingdom, But so it is, that ••y the use of other Kingdoms, and particularly of Eng∣land, and France, the Nobility, Barons and others, pay Customs for all imported Goods.

The Customs being granted for the Defence of the Kingdom, [ 3] and the Support of His Majesties Royal Dignity, it is just that the Nobility and Barons, should rather pay than any others, since they are of all others most concerned, to maintain the one, and support the other.

Scotland being a Countrey, that has no Consumption, for im∣ported Goods, save within themselves, if the Nobility and Gen∣try [ 4] should not pay, they might bring home all their own Com∣moditie••, and so there should be little or no Customs due to the King.

They might colour the Trade of Merchants, by granting simu∣lat Commissions, for bringing home, the Goods of Merchants, un∣der [ 5] their names, which would occasion much Perjury, and at least put the Customers to a Process, and Suspend the payment of the true Customes, till that were clear'd by Process.

When this Kingdom thinks fit, to guard against the importati∣on of any forraign Goods, they do this by imposing great Customs, [ 6] as was lately done by imposing 80 per cent. upon all English Cloath. But so it is, that if this exemption were allow'd to the Nobility and others; these Prohibitions would be useless and ineffectual, for those Prohibited Goods might be brought in by them, and so our Ma∣nufactories, could never be encouraged, nor could we force other Nations, justly to ballance their Trade with us, or keep our Money within our own Countrey.

If these Exemptions were allow'd, there could be no possibili∣ty [ 7] of lessening and curbing the Luxury of the Nation; For the Nobility and Gentry, might still wear what they pleas'd, at least it would be an encouragement to them, to bring home things superflu∣ous, they being free from Impositions, whereas their being burdened with Custom, would discourage them to bring home su∣perflueties.

The Exchequer has in their Tacks been in use to set the Customs with express order, to allow no exemptions, and the Customers [ 8] have exacted Customs from the Nobility and Gentry, which proves the Kings Possession, and the acquiescence of those, who plead the exemption.

Whereas it is pretended, 1^o. Customs are regularly a Duty, impos'd upon Merchandice and Traffique; But what Noble∣men and Gentlemen, import for their own use, is not Merchan∣dice, nor Commerce. 2^o. By this Act and by Act 152.

Par. 12 Ja, 6. the 251 Act Par. 15 Ja, 6. And the 143. cap. Leg. Burg. There is an express exemption from Customs, granted to the Nobility, Barons and other Heretors, for what they import to their own use.

It is answered, that as to the first, Custom being impos'd for the uses foresaid, the payment should be regulated, by the reason that imposed the Imposition, and not by the nature of the Traffique; and if that were a good reason, neither Merchants, Burg••ss••s, nor any else should pay Customs, for what they are to apply and con∣sume for their own privat use. 2^o. Though that were generally true, as it is not, yet the Laws and Customs of this Kingdom, should alter the case here, as it does in other Kingdoms.

To the 2d it is answered, that 1^o. There is a great difference in our Law, betwixt these, persons being free to Trade, and so not lyable to the pains of un-free Traders, and their being free from paying of Customs; and the first two Acts cited, do certainly Militate only in the first case, by granting them a freedom to Trade, but not a freedom from paying of Customs. And as to the 251 Act 15 P••r. Ja. 6. It does not grant an exemption from Customs. And albeit it may be urg'd, that the first part of that Act having im∣posed Customs on all, and this being an exception, it must be an exception from the Rule, yet consequential Arguments, should not take away express Laws, nor is this an exception, but rather a Cautionary Reservation, and these use to be insert ad majorem Cau∣telam and should never be extended beyond the Terms of the Re∣servation. But so it is, that the Reservation is not conceiv'd ab∣solutely, but only conform to the Laws and Liberties, granted to them before. And therefore since it cannot be subsumed, that there are any former Laws, granting this exemption from Cu∣stoms, it must be restricted to the priviledge of their b••ing free, from the pains of un-free Trading only. 2^o. It is to be consi∣der'd, that the former Laws, allows them only the liberty from being punish'd as un-free Traders, as to what they import by their own Servants, for their own privat use, and as the return of Commodities of their own product, exported by them. Nor does the 143. Chap. Leg. Burg. extend further than to exeem Ba∣rons, from in-land Customs, due to Subjects. 3^o. The time of that Act, the Customs were justly impos'd, upon exported Goods, But thereafter His Majesty was graciously pleas'd, to lay the great∣est part of the Customs upon the imported Commodities; and so having very much freed the Barons of a Duty, that burdened their product, it was not reasonable, that their product and im∣ported Goods should be both free. Likeas, so convincing was this Argument, that albeit some shadow of an exemption, was sub∣joyn'd, when the Customs were imposed, upon their product by the first Constitution, in that Act 251. yet when this burden was transferred, by the Act 1670. from the export to the import, the

Barons did require no such exemption, nor does the Act bear any▪ And so this Act is innovated, by the said posterior Act.

As to the Excise, there can be no pretence, for any exemption from it, since there being no such Duty extant, the time of the Act 251. That Act cannot be extended to the Excise; And whereas it is pretended, that by the Act 3 Sess. 2 Pa. Ch. 2. This exemption is renewed after the imposing of Excise.

It is answered, that the said Act Ch. 2. does not express any such priviledge, but only says, that the Regulation of the differences, be∣twixt the Burghs Royal and Burghs of Barony, introduced by that Act, shall be but prejudice, to the Noblemen, Prelats and others, of their priviledge of importing any of the Goods, allowed to be then im∣ported, for their own and families use allenarly; Which can only be interpreted, to relate to their freedom of Trading, that being the only design of the whole Acts, in which there is no design of Re∣stricting or innovating any thing, with relation to Custom or Ex∣cise.

And thereafter since at all times, the King is founded quoad the payment of Customs; much less ought we to Debate this with him at this time, when His Majesty is content to lessen his uncontro∣verted Right in the Customes, for the enriching these who contro∣vert this his Right, by consenting at their desire to discharge, more imported Goods, than would pay him more Customes then he can expect from these not exeemed.

Notwithstanding of these Reasons, yet by the present Tacks, Noblemen and Gentlemen, are exeem'd from paying Customs for what they bring for their own use, but they are not, exeem'd from Excise, nor the additional Duties, because these were granted to the King, in contemplation of what the King lost by the want of the Custom due to him, upon Goods now prohibited, vid. Gim∣nas. de vectig. p. 76. Where it is told us, that by the Laws of Germany, Illustres & generosi sunt immunes pro his quae sunt pro victu & cultu suo vid. l. omnium. C. de Vectigal.

VId. Annot. Act 66 Par. 14. Ja. 2.

VId. Annot. Act 67 Par. 14. Ja. 2.

OBser. 1^o. This Act appoints all Ships to have Chartor Parties, and because there was no penalty against these, who had no Chartor Party; therefore by the 109 Act Par. 14 Ja. 3. The penalty of twenty pounds is adjected; and yet both these Acts are in Desuetude,; for within the Kingdom, no Chartor Parties are used, nor are they found necessary, even for these who Sail abroad.

Observ. 2^o. That though it be said in this Act, that when any Debate happens betwixt Master and Merchant, that they shall un∣derly the Jurisdiction, and Ordinance of the Burgh, to which the Ship is fraughted, without any exception; yet by the Custom now observ'd, such Pursuites may be intented against the De∣fender, wherever he dwells, or before the Lords, even in the first instance.

Observ. 3^o. That though by this Act it be ordain'd, that no Merchant Goods be riven or Spilt, with unreasonable stowing, or the Masters fault, under pain of tinsel of the Fraught, and a∣mending of the Skaith, yet the Skipper is lya••le, if the Goods be spilt, though without his fault, & ex casu f••rtuito, as by Water from a Pomp, though the Pomp had a Stellage about it, and was proven to have been a sufficient Pomp, before the Ship set forth, so that this danger could not have been foreseen, & quamvis loca∣tor non tenetur ex casu fortuito; and the words in a Bill of Loadning obliging the Skipper to restore the Goods well conditioned, can only bind, ad exactissimam diligentiam Vid. Peckium pag. 34. Yet the Lords thought, that if such Defences were allow'd, Mer∣chants could have no Security, for they were neither oblig'd to know, nor could they prove the secret frailties of Ships, Novem∣ber 7. 1677. Lowrie contra Angus.

This Act in so far as it appoints a Seek-Fraught to be paid to the Chaplain of the Nation, is in D••suetude: And by the Chaplain of the Nation, here is mean'd the Kings Almoner, which was to be given to him for the use of the poor, for in the next line it ap∣points a Tunn Fraught to be paid to the Kirk-work of the Town, to which they are Fraughted; but I know there are some who say that Capellanus noster, mentioned among the Witnesses, to the Kings Deeds, is mean'd the Director of the Chancellary: the Chancellary being call'd in all our old Writs, Capella Regia.

BRuges was the first Staple of this Nation, but it's discharg'd by this Act, to be the Staple for the future, and our Ships are allow'd to go to the French Ports by the following Act, because of the Alliances we had with France, and that France and Flanders were then entring into Wars▪

STaple Goods are by this Act to remain in Staple, and not to go to Mercats, for clearing of which Act, it is fit to know that Kings and Common-wealthes, allow some Goods only to be sold at particular places, and these are call'd Staple Goods; and the place is call'd, the Staple Port, Jus stapuli est potestas sistendi in suo foro restringendi{que} merces speciali emporii beneficio certis civitatibus competens Loccen. de Jur. Marit. lib. 1. c. 10. num. 3. Potest enim Rex ob bonum publicum in hoc casu dispensare, l. ult. C. de leg. But this priviledge of Staple, is not competent, except it be specially granted, and Strangers as well as Natives, may be forc'd to ob∣serve that priviledge, for they are here tanquam subditi temporarii,

Grot. de jur. Bell. Part 2. num. 11 and 5. But yet this Act discharging the carrying of Staple Goods by Sea, from Simon and Jude's Day, till Candlemas, is in Desuetude; for our best Trade is now in Winter, but the reason why Winter Trade was then discharg'd, was because our Vessels were small, and our Sea-men ignorant, so that many pe∣rished by Winter Voyages.

ARe Explain'd in the Acts 67, and 68, 8 Par. Ja. 3. and by the 36 Act Par. 8. Ja. 2. as is also the last Act of this Parliament.

VId. Annot. on Act 59 Par. 3 Ja. 1. Supra.

King JAMES the third, Parliament 4.

THis Act is conform to Iter: Camer: cap. 30. And the last Act ordain'd to be put to Execution by this Act is Act 73 Par. 14 Ja. 2.

THis Act is in Desuetude, for it is now lawful to carry any kind of Cattel out of the Countrey, without hazard of Con∣fiscation. It is clear from this Act, that the Warden might then have granted Licences for Goods prohibited, but this the Commissioners of the Borders cannot now do.

King IAMES the third, Parliament 5.

VId. Act 76 Par. 14 Ja. 2. But it is to be observ'd from these words, in this Act It shall be lawful to the Kings Highness to take the Decision of any Cause that comes before Him, at His empleasance. Likeas it was wont to be of before, That the King Himself may be Judge as he pleases; but though the King did call an Action to be judg'd before himself, that was depending before the Lords; yet His Majesty was thereafter pleased, upon a Representation of the Inconveniences that would arise, to refer it back to them; and some interpret this of the Kings power, when he is sitting in his Judicatures; though I think the Act will not bear that gloss: ••ut certain it is, that at first all Masters were Judges in their own Families, and that Kings themselves Judg'd in their own Kingdoms, as we see in the instance of Solomon and others, vid. ch. 16. Stat. David 2. Where there is a Decision of the Kings insert amongst his Statutes, and the Doctors are of opi∣nion, that princeps habens causam cum suo subdito potest ipse judicare si vult. Peregr. de jure sisci tit. 2. num. 7. and this seems founded on l. & hoc Tiberius 41. ff. de haer. instit. & l. proxime ff. de his qu•• in test. delent. And though thereafter they did disburden themselves of

that Charge, by electing other Judges, yet they did not debar themselves from that power; and therefore we use to say, that all Jurisdiction in Scotland is cumulative and not privative; but if the King take the Cognition of any Cause, He will try it ac∣cording to the Forms of that Court, where it should have been decided; and therefore if He be to Try a Criminal, the Pannel will be allow'd to hear the Witnesses Depone against him, and the matter of Fact will be judg'd by an Assyze. If it be alledg'd, the meaning of this Act is only that the King may Try any Acti∣on He pleases in His Council, that is to say, His Session, (for of old, the Session was call'd His Council, and yet they are call'd His Coun∣cil and Session) To this it may be answered, this A••t appoints that Causes should be first Try'd by the Judge ordinary, and if he either refuse to Judge, or Judge wrong, the Council is to Judge, not the Cause, but him, and this induc'd some to urge, that the absence from the Host could not be pursu'd before the Council, though the punishment was restricted to an arbitrary punishment; for which they brought these Reasons: 1^o. That this would confound the na∣ture and limits of all the Judicatures, which are the great foun∣dations of our Law, and which is contrary to this Act. 2^o. It is the great security of the People, that when they are Try'd for Crimes, they should be judg'd, not only by the learn'd Judges, as to Relevancy, but by their Peers, whom they may judge again as to the Probation. 3^o. Advocats are to be heard before the Cri∣minal Court, but not before the Council▪ and the Debate is to be there in Writ, which obliges a Judge to do justly, and the Probation is to be led in presence of the Pannel. 4^o. Before the Council the Crime may be refer'd to Oath, which is not suitable to the Cri∣minal Law, even where the punishment is arbitrary, except the Party be by Act of Parliament, oblig'd to Depone, as in the case of Conventicles. 5^o. There are no Exculpations before the Coun∣cil, which are necessary in Crimes. 6^o. Several Acts of Parlia∣ment appoint, that cases may be pursu'd before the Criminal Court, or Council, when that is intended, and which were unnecessary, if all Causes might naturally be pursu'd before ei∣ther.

It being likewise Debated from this Act, that a Judge for giv∣ing an unjust Decreet, might be pursu'd before the Council in the first instance for oppression, the Council did in January 1682. find, that a Sheriff, or other inferiour Judge, could not be ••ursu'd before the Council, until his Decreet were first reduc'd before the Judge ordinary, and that because the 105 Act Par. 14 Ja. 3. Ap∣points all Actions to be first pursu'd before the Judge ordinary, and the Lords of the Session are Judges Ordinary to Reductions, and are there appointed to cognosce the wrongs done by inferiour Judges; and if this were Sustain'd, the Privy Council should be∣come the Session, nor would any man be a Sheriff, since he might every day be pursu'd before the Council; And whereas it was pre∣tended, that the Council were Judges to Oppression, and there might be great Oppression committed by inferiour Judges, sub sigu∣râ

judicij. It was answered, That when the Decreet was Re∣duc'd, they might then be punish••d as oppressours, if there was no colour of Justice for their Decision, as the said 105 Act provided, Sheriff of Bamff contra Arthur Forbes. Vid. Obs. on the 16 Act 6 Par. Ja. 2. and 16 Act 3 Par. Ch. 2.

WE see that the granting Reversions by the Wodsetters, were but new Inventions in Anno 1469; and Reversi∣ons were only personal, and did not oblige singular Successors be∣fore that Act, but by this Act they affect singular Successors, pro∣viding they be Registrated. And though this Act speak only of Re∣versions; yet elks to Reversions, and obligations to grant Rever∣sions, are also real Rights, if Registrated. 2^o. A Reversion, though not Registrated, is by our Law valid against singular Suc••••ssors, if it be Incorporated, and contain'd in the body of the Wodset it self, for then the singular Successor must know the same, since it is Incor∣porated in his own Right.

BY this Act personal Rights are ordain'd to prescryve, if no Di∣ligence was us'd thereupon within fourty years, as Heretable Rights do prescrive by the Act 12 Par. 22 Ja. 6. And though this Act appoints only Obligations to prescryve; and that the word, Obligation, does properly signifie only Bonds and C••ntracts; yet this Act extends to Testaments and Decreets, July 26. 1637. and this prescription is also extended to all personal Actions for Move∣able Goods, and so it did defend against an action for a Kirk-Bell, December 7. 1633. For in effect all these are Obligations.

Whereas the Act says, except document be taken thereupon; the meaning is, that Diligence upon the Writ, that is, to prescryve interrupts Prescription; and thus Horning upon a Bond, or Cita∣tion upon an Action interrupts, July 6. 1671. M^crae contra M^cdonald: and payment made by the principal Debitor, inter∣rup••s as to the Cautioners. It is observable, that Prescription up∣on this Act, runs not against Minors, & contra non valentes agere, though neither of these are excepted in this Act; because these Ex∣ceptions are warranted by the Common Law, and it may be al∣leadg'd, that it runs not against furious Persons, since they are in all things compar'd to Minors, albeit there is this difference, that a man may feign himself to be fu••ious, to the end Prescrip∣tion may not run against him: But yet Prescription runs against things left, ad pios usus; nor is the time of War and Pestilence, when there is no Judicature, nor Session to be defalked, June 30. 1671.

Prescriptions runs only against personal Bonds, from the Term of payment, and not from the Date of the Bond, because till then, the Creditor cannot pursue, Fe••ruary 19. 1680. Lutefoot contra Glencorse.

IT is pretended that this Act is in Desuetude, and that Magistrats may be continued for many years, or at least, that this Act must be so Interpreted, as to infer only a necessity of a new Election yearly; but not of yearly changing the persons elected; for some∣times there are few to be choosed, as in small Burghs, and in great Burghs a forc'd alteration might prejudge the Towns Interest, because there are few worthy to be Elected in these little Towns, and the Lords inclin'd to this Gloss, in the Town of Edinburghs Process against Sir Andrew Ramsay.

The Burrow Law here related to is, cap. 77. leg. burg. it appears by this and many other Acts, and old Evidents, that Alderman, was the same of old with our Provost, and they are still plac'd above Baillies, it comes from the Saxon Word Ealdor Senior, thus we say for age, or for eeld.

NOtars are now only chosen by the Kings Authority, and are Examined by three Lords of the Session, and get their Pro∣tocals marked at their admission by the Clerk to the Notars, who is one of the Registers Deput Clerks: Nor are the Notars to be admitted by the King, to be Examined by the Bishops, as this Act appoints; and yet our Style retains to this day, so much of the old Form, that the Notars express still in all the Instruments, and other Papers sign'd by them, that they are Notars of such a Diocie.

BY this Act all Woolen Cloath is to be met by the Rig, and not by the Selvedge, but by the 43 Act 1 Par. Ch. 2. Linen Cloath is ordain'd to be taken up by the Selvedge, and not by the Rig; because Woolen Cloath stretches, when measur'd by the Sel∣vedge, but the Selvedge of Linen hinders it to stretch.

THough this Act appoints only Heretable Sheriffs, or Sheriffs in that part, that is to say, any ordinary person who exe∣cutes the Kings Letters, to put their Stamp to the Execution; yet by the 74 Act 6 Par. Ja. 5. The execution of all Letters must be stamped; and though here, the not Stamping makes the Exe∣cutions to be only null; yet by that Act, such as omit to stamp are punish'd by Deprivation. Vid. Observ. on that Act.

Oppression of the Kings Leiges in Fairs, by taking more Cu∣stom from them than is due, is by this Act punish'd only arbitrarly, as to the offenders Persons, and by a years Suspensi∣on from their Offices, and what Custom is allow'd in such cases, is exprest, Act 60. Par. 13 Ja. 2. How far arbitrary punishments may be extended, is doubted. These who have Fairs, had not power to exact Toll, gl. in l. un. C. de nundinis, because Fairs enrich the place, and Toll wrongs Commerce.

THough removing of Tennents, and poinding their Goods, be appointed by this Act, to be three days after Whitsun∣day or Martinmass; yet by the 39 Act 6 Par. Q. Mary. All warn∣ings against Tennents, are to be used fourty dayes before Whit∣sunday only; the old Form of Removing was, That the Master did only intimate to the Tennent that he was to remove, and broke a Lance before the Tennents Door, as the Symbol of breaking their Tack; and within 3. days ejected the Tennent, as Craig observes; but now the Tennent must be warned 40 days before the Term, and a Decreet of Removing must be had, whereupon he must be Charged and Denunced before he can be Ejected; and after that Letters of Ejection are directed to the Sheriff.

ALL Murders committed by Fore-thought Fellony, that is to say, upon design, or per insidias (called Assassinium) are denyed the Protection of a Sanctuary, or Girth by this Act; but it appears that the Crime of Assassination was here excepted ex∣presly, because it not being exprest in the very Text of the Canon Law, there were several debates about it; vid. Covar. Variar. Re∣solut. cap. 20. For though it be ordinarily proved, per cap. 1. de homici∣dio si quis per industriam occederit proximum suum & per i••sidias ab altari meo avellet cum ut moriatur; which Text seems to be mean't by these words in this Act; For the which the Law grants not the Immunitie of the Kirk; and in which our Law has followed the common opinion, that Assassinators are denyed the priviledge; yet cap. inter alia gives Immunitie to all, except publicus latro & depopu∣lator agrorum; and that cap. de homicid. Excepts only Church-men, who have Assassinated proditorie, and who indeed should have less Immunitie than others; but now the Churches being a Sanctuary or Girth, is in Desuetude, since Poperie was abolished; though the Kings Palaces are still Sanctuaries in all Nations, if Princes be dwelling therein; and yet I think they should not be Sanctuaries if they dwell not there, except that allowance be granted them, either by express Concession or Prescription; but these gave not Protection to such as were notorious Criminals, Novel. Justin. 17. cap. 5. verb. Neque homicidis, neque adulteris, ne{que} Virginum Raptori∣bus, delinquentibus terminorum custodies cautelam, sed etiam inde ex∣trahes & supplicium iis inferes: non enim talia delinquentibus parcere convenit &c. And now I find not that any of the Kings Palaces are Sanctuaries as to Cryms with us, and in no case should they be a Sanctuary against searching for, and apprehending Male∣factors; as is clear, l. 3. ff. de fugitiv, Div. Marcus facultatem dedit in∣grediendi tam Caesaris quam Senatorum praedia volentibus fugitivos in∣querere. The Conʒie-house pretends also to be a Sanctuary with us.

This priviledge of a Sanctuary was only granted to Holy, and Consecrated Places, and amongst Protestants, no Consecrati∣ons are in use, but yet according to the Canon-Law, Churches even before Consecration, are generally thought by Lawyers to have that immunitie, vid. Covar. variar. resolut. cap. 20. num. 4. And al∣beit

this Priviledge be properly a Canonical Priviledge, yet it cannot be denyed, but that the very Churches of the Gentiles had this Priviledge, as is clear by T••••ucid. lib. 7. and was approved of by Councils and Fathers, who are cited cap. 17. Quest. 4. Prae∣sertim cap. Miror & cap. pen. & fin. de Immunitate Ecclesi••st. vid num. cap. 35. I••sua cap. 20. Deuter. cap. 19. Exod. cap. 21. But though by the Canon Law, 40. Paces about the Mother-Church, and 30, about other Churches had the same Priviledge of Immunitie; albeit Skeen speaks only of the 30. paces in his Annotations, ad cap. 6. Statut. Alex. 2d. Yet I read of no such Priviledge to either the 30. or the 40. paces, nor to the Palaces of Bishops, nor to Hospi∣tals, vid. Covar. ibid.

BEfore this Act the Tennent might have been Poynded by the Brief of Distres, for all the personal Debt owing by his Master, but by the first part of this Act, it is appointed, that the Tennents shall be poynded only for as much as they owe their Master which did hold only in poynding for moveable Debts; for in Decreets of poynding the Ground, the Creditor might have poynded all he found upon the Ground, and all invecta & illata, though the Tennent owed not so much to the Master; yea, though he owed him nothing, as was found 11. July 1628. And though the Ten∣nents Term of payment were not come, if the Term of payment of the Annualrent were by-past; and they who were so poynded, had their relief of the Heretor, for whose Debt they were poynded; but now the Lords extends this Act so, as to defend Tennents against poynding upon Infertments of Annualrent granted by the Master, so that execution cannot passe against them for more than they owe their Master, as to which only they can be personally lyable, and their Goods or invecta & illata can b•• only poynded; but yet this was not properly an Extension for debita fundi are the Heretors or Lords Debt, since the Heretor is personally, and the Land is really lyable therefore. This Act extends only to Tennents of Lands, but not to Tennents of Teinds, who cannot be poynded for their Ma∣sters Debt, 14. January 1556.

The second part of this Statute prescribes the way of Appryzing Lands from Debitors, and it is the Original Statute whereupon Apprysings are founded in our Law; and it seems strange, that so material a part of our Law should not have an entire Statute, but should have been brought in at the close of another, and less im∣portant case.

The form prescribed to Compryzings, by this Statute, is, that if the Creditor cannot recover payment by poynding the Moveables, the Sheriff shall cause sell the Land to the avail of the Debt; and from this Act it is, that to this day the Moveables must first be fought, and though the Appryzing will be null for want of this Solemnitie; yet the offering to prove that there were as many Move∣ables upon the Lands as might pay the Debt, will not reduce the Compryzing, except these Moveables were offered to the Messen∣ger, when he was executing the appryzing, and when the Sched∣uls

of appryzing were laid on upon the ground of the Lands; tan∣tum creditur nuncio referenti se fecisse executionem in stabilibus quia non ••••t••bant bona mobilia debitoris quod non auditur volens probare contrarium ad annullandam executionem Surd. Concil. num. 1. lib. 1. This Solemnitie descends from l. 15. § 2. de re Jud. by which Moveables were first to be poynded, and then Immoveables failʒing of these, and was formerly introduc'd into this Nation by the cap. 9. Stat. 2d. Rob. 1.

By this Act, it is appointed, that the Lands be appryzed to the avail of the Debt, this proportion was long observed, and much was referred to the arbitriment of the Judge and Inquest. Bal∣four, who collects the oldest Decisions, and such as were about the time of the Institution of the Colledge of Justice, in his title of Comprizings▪ chap. 3. gives this for a Rule, that ilk twenty shil∣ling Land of old extent, was comprized to twenty Merks, 4 July 1533. James Heren contra Henrie Livel, and ilk Mark Land of yearly profit was to be Comprized to twenty Merks of Stock, which answered to five for the hundred, penult May 1589. Adam Dick∣son contra John Carhattel, penult. March, 1539. But I have seen diverse old Comprizing led about this time, at the instance of George Lord Seaton, and Lady Jean Hepburn his Mother, against some Vassals, and Wodsetters in the Barony of West-niddery in Linlithgow Shire, where more then five of the hundred was allowed, as will appear by computation; one of these Comprizings dated 18. March, 1523. bears 21. Aikers, with 12. shilling Scots per aiker to have been ap∣pryzed in payment of two hundred and fourty pounds of principal due to the said Lord George; and a second Comprizing also led at his instance, dated 17. December, 1541. bears, 25 Aikers, and two parts of an Aiker of infield land to have been appryzed in payment of two hundred and fourty pounds of principal due to the said Lord George; and a 〈◊〉〈◊〉 Compryzing also led at his instance, dated 17. December, 1541. bears, 25. Aikers, and two parts of an aiker of infield to have been apprized for payment of three hun∣dred and fourty two pounds of principle, each aiker being valued to a merk of yearly Rent; a third Appryzing at his instance, dated 6. Feb. 1544. bears, 20. Aikers and a half to have been appryzed for 244. lib, of principal, ilk aiker being valued to 15. shil••ing of yearly Rent, and a fourth Comprizing, dated, 5th May, 1547. bears, 18. Aikers to have been apprized in payment of two hundred and twenty merks principal, and the Rent of an aiker to be va∣lued to a boll of victual, and the price of the boll to have been valued to 18. shilling Scots yearly; and this was by and attour the Sheriffie, for which the like proportion of Lands was appryzed, as the several appryzings bears; and for the better making of the proportion, they also bear, that the Sheriff and Inquest came to the ground of the Lands, and measured off the aikers, and set a constant price on the victual, but by one of the Decisions cited by Balfour, later than these; It's like that five per cent has been their∣by appointed to have been the Rule in time coming, as he sayes.

When Annualrents out of Lands were appryzed, the Inquest did never exceed 5 per cent without a Dispensation from the Lords of Session, or else they were pr••judg••d, sayes Craig, pag. 332. And the Compryzings were reduceable, but Dispensations were easily granted▪ and Craig saye••, they were sought to free the Inquest from hazard of perjury, but upon what ground it was, that the Inquest scrupled more in Compryzing of Annualrents, than in Compryzing of Lands, where they allowed a Rent answerable to 5 per cent, I cannot conjecture, except for one or two Reasons, 1. That annual∣rent is a thing odious, and unlawful by the opinion of many Divines▪ and therefore not to be stretched. 2. Annualrents were free of publick Burdens, to which Lands were subject, and therefore a greater allowance might have been given of Land-rent than annu∣alrent.

When Life-rent Rights, such as Conjunct-fee, Simple-liferent Ter∣ces or Curialitie were comprized, the estimation was made according to the age of the Life-renter, or Life-rentrix, when within 40. years, the estimation was 5 years purchase, that is as much as the Fruits and Rents had yeelded for 5. years preceeding, or might yeeld in 5. years thereafter; and when the Life-renter exceeded 40. years of age, and was not of the age of 50. compleat four years pur∣chase was the estimation; and if 50 years of age was exceeded, and the sixtieth not attained the estimation, was three years purchase; and if the Life-renter was weak, or sicklie, or that there was any other cause that might interrupt the Liferent-right, the Inquest did value, as the Circumstances determined; Craig pag. 331. in fine. & dict. pag. 332. in princ.

And when any Servitude was apprized, the Inquest did also value as they thought the Servitude profitable, Craig loco citato.

This was the way of Procedor in old Comprizings, in making a proportion betwixt the Debt, and the thing Appryzed.

The form and stile of Decreets of Compryzings of old was shortly thus; the Clerk of the Compryzing, who was ordinarily the Sheriffs Clerk, did extend a writing upon Parchment, con∣taining all the particulars of the procedor, to wit, that the Cre∣ditor having obtained a Sentence before the Sheriff, decerning his Debitor to pay a certain sum, and there being no Moveables to pay it, the Sheriff came to the ground of the Land with an In∣quest of most knowing Persons within the Shire selected for that effect, and there measured off some aikers for the Money, and Sheriffie corresponding, each aiker paying so much victual, and the victual being valued to a suitable Rate, redeemable always by the Debitor within the time contained in the Act of Parliament; and which Writing is Seal'd with the Seals of the Judge, and of the In∣quest.

2^o. Though this Statute appoints the Sheriff to sell, yet upon deliverence of the Lords of the Session, they will appoint the Compryzing to be led before Messengers, or Macers, whom they will make Sheriffs in that part.

It being debated, whether a Compryzers Marriage fell to the King, where the Comprizer was payed within the Legal, though he was not payed when the Marriage fell, but was payed there∣after, and before the Legal expired; it was urged that it did fall, because the Compryzer was Vassal, and so as all Casualties due by other Vassals should fall, and that the King should rather have this casualty from Comprizers, than from any Vassals, because a Compryzer could by a special Statute, be entred by the King, though a singular Successor. 2^o. If the King were seeking this ca∣sualty by the Debitors Death, the Comprizer would exclude him, by alledging that the Debitor was Denuded, and it were unjust, that by this means, the King should want his casualty from both. 3^o. The King falls all other casualties by the Compryzer, such as Recognition, Liferent Escheat, and the Compryzer by being en∣tred, can do all Deeds that other Proprietars can do; and there∣fore should be lyable in all other casualties, as they are. 4^o. If this were not allow'd, the King might be still defrauded of this casualty, for the Comprizer might still secure the Debitor, and if his own Marriage fell, he might thereafter cause redeem him∣self; And whereas it was pretended, that a comprising is but a pignus praetorium & in pignori••us non transfertur dominium, and so the Debitor being still Proprietar, remain'd still Vassal. To this it was replyed, That though a Comprysing resemble pig∣nus praetorium, yet it is truely an alienation, and this Statute ap∣points the Land to be sold to the Creditor; and by the whole Te∣nor of Comprisings, it is clear that it is a judicial Vendition made under Reversion, and so resembles more a legal Wodset; and therefore as in Wodsets, the Wodsetters Marriage would fall, so ought the Comprizers, and its being a legal Vendition and Alie∣nation appears from this also, that it falls under Recogniti∣on; and Recognition presupposes still alienationem dominij. The Lords upon this Debate (which clears much the nature of Comprisings) prefer'd the King, for they found that the Compriser being Vassal, the Marriage fell by his Death, he having died before the Comprysing was redeem'd, and therefore it may be doubted, whether the Compriser will have his relief, for the damnage in∣cur'd by this casualty from his Debitor, before the Lands can be redeem'd from him, since it fell by his fault, in not paying him; nor is the Debitor much prejudg'd, for if the Lands had not been Compris'd, this casualty might have fallen by his own Death, and the inconveniency urg'd from the multitude of Marriages, that would fall by the great number of Comprizers, is of no w••ight, since if a man had sold his Land, and divided it amongst his Cre∣ditors, all their Marriages had as well fallen, in that case, as in this.

3^o. Whereas by this Act, the legal is to extend to seven years only, so that if there be one shilling resting after seven years, the Comprysing expires; yet by the 62 Act 1 Par. Ch. 2. Anno 1661.

This legal is extended to ten years, but both the seven and ten are to be compted from the Date of the Decreet of Apprising, and not from the Date of the allowance, by our practick.

4^o. Though Superiours be not oblig'd to receive singular Suc∣cessors, yet they are bound to receive Comprizers upon payment of a years Dewty of the Lands Comprised, and this singularity is introduc'd in favours of commerce, and of poor Debitors, but to ballance this speciality, the Superiour is allow'd to retain the Land comprised to himself, upon payment of the sums comprised for, because he is also proprietar of the Lands, having dominium dire∣ctum, as the Vassal who is Debitor has Dominium utile, vid. 5. March. 1634. Black contra Pitmedine. But it was lately found, that the Superiour could not redeem after seven or ten years, no more than the Vassal, for though the legal, as to the Superiour, be not limited, yet he comes but in place of the Vassal, and so ought to have no more priviledge, and this general must be restrict∣ed by the other parts of the Act.

5^o. Though the Superiour be bound to receive the Comprisers, and that without producing their Authors Right, because it is not presumable that their Debitors, from whom they comprised, will produce their Rights to them; yet where Adjudications are led, for compleating Dispositions, or other Rights, the Superiour is not oblig'd to receive such Adjudgers, until they instruct the last Vas∣sals Right; for such Adjudgers as these are not ordain'd by the Act of Parliament to be received, June 24. 1663. M^cneil contra M^cdougal. But it may be doubted, what an Adjudger, who has done ulti••at Diligence, to recover his Debitors Writs, shall do, if he cannot obtain them, it being very hard, that he should ly out of his Right, because of the contumacy of the person, who is oblig'd to compleat the Right. Vid. obs. on the 19 Act Par. 2 Sess. 2 Ch. 2.

THough it is said here, that Justice-airs need not be continu'd; yet Justice-courts are declar'd peremptor, so that if Actions before them be not call'd, the day to which the citation is given, the citation is null, & perit instantiâ. Act 79. Par. 11. Ja. 6. Vid. Observ. on that Act.

BY this Act it is declar'd, that the Rolls and Registers be put in Books, and have the same strength that the Rolls had: for understanding which, it's fit to know, that both in Parliament and Exchequer, there were no Registers but Rolls. And by this Act the Rolls are ordain'd to be turn'd into Books. and these Books are declar'd to be as authentick as their Originals, and the Clerk is yet design'd Clerk of the Council Register and Rolls.

THis is the only Act, by which counterfeiters of Money are punish'd by death; and yet this Act properly stricks against the counterfeiters and coyners of Copper-money only, which in our Law is call'd black Money.

It has been doubted, whether the Officers of the Mint could coyn Copper-Money without express permission; but it was lately found they could not, because coyning is ex sua natura inter rega∣lia. 2^o. There have been several warrands expresly granted to the saids Officers themselves, for coyning Copper-money, and deter∣mining the quantity to be coyn'd, and the rates to be follow'd, which had been needless, if this could have been done without a Warrand. 3^o. There is so great profit to the Coyners, and so great loss to the people, by coyning Copper and black Money, that it was necessary the coyning should have been determin'd. 4^o. It had been unnecessary and absurd, to have discharg'd the counterfiting and currency of Black-money by this Act, if it had been lawful to have coin'd without a Warrand; and whereas it was alleadg'd that black money was Coin'd in England without warrand; To this it was answer'd, that such farthings &c. past only in the place where they were coin'd in England, but what passes in one place of Scotland, passes through all. Vid. Annot. on Act 28 Par. 6 Ja. 2. Supra.

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.

King IAMES the third, Parliament 7.

BY the Civil Law, he who is to succeed as Heir, is still to be Tutor of Law; but because this could not well be, where the immediat Heir was himself under twenty five yea••s; and therefore by this it is appointed, that the age of a Tu∣tor of Law, or Tutor legitimus, shall be the age of twenty five years, though the age of majority be twenty one, because it re∣quires greater experience to Govern other mens Affairs than our own; and if the immediat Heir, be not of that age, the next Heir who has attain'd to that age, is to be Tutor. And by the Civil Law, no man could be a Tutor, even by a Testament, till he attain'd to that age, Inst. qui testament. tutor § 2.

By this Act also, the nearest Agnat, that is to say, the nearest of the Fathers side is to be Tutor, which was conform to the old Civil Law; but Justinian; by the Nov. 118. did take away this difference betwixt Agnats and Cognats, both as to Succession, and Tutories, and we in both follow the old Law, and not this Novel.

BY this Act, the Laws called leges burgorum, bound in with Reg. Maj. are declard a part of our Law, and the Chapter particular∣ly related to is cap. 125.

Though this Act appoints only the Heirs of Barons, Gentlemen, and Free-holders to have Heirship-moveables. Yet by our Law, all

Prelats, Barons and Burgesses may have Heirs, and these Heirs have right to the best of every thing that belong'd to their Predecessor, as their heirship-moveable, conform to a Roll, expressing what is heirship-moveable, a copy of which Roll may be had from the Clerk of Edinburgh; the reason why moveable-heirship was allow∣ed only to Prelats, Barons, and Burgesses, seems to be, either because these being the only three States of Parliament, they on∣ly ought to be allow'd such considerable Plenishing, as heirship-moveables; or else because in those dayes, none but persons of these qualities, could have such moveables; under the word Pre∣lats are comprehended all benefic'd persons. By Burgesses are under∣stood all Trades-men, and others Traffecking, or working within Burghs, but not honorary Burgesses; By Barons are understood, all who are Infest in Lands, though not erected in a Barony, and that maxime, semel baro, semper baro, is to be interpreted presumptive, so that he who is Infest in Lands, is presum'd to die Infest: But if he was devested before his death, either by Comprysing, Re∣signation, or otherwise, he cannot be counted a Baron, and have an heir, January 27. 1636. Straton contra Chirnside. These words (of the best of ilk thing) must be interpreted, de corporibus, but not de quantitatibus & rebus ••ungibilibus quae pondere numero, vel mensurâ constant, as Money, Cloath, &c. and so the Stool of a Salt-pan, which was out of use, was accounted but Iron, and fell not under moveable-heirship, Had. 1497. Reid contra Thom∣son. Item, where there are a dozen of Spoons, or moe, the Heir shall have a dozen, if they be fewer, he gets but one Spoon, Dict. cap. 125. l. burg. which Custom hath extended, not only to other things that go by dozens, but likewise so; as these things that go by pairs, and are of one use, must belong to the Heir; and thus the heirship of Oxen was found to be a yoke, July 20. 1610. Black contra Kincaid. Dubitatur, 1^o. If the appearand heir of a man, who has only a Disposition, but is not Infest, may have moveable heirship. Dubitatur, 2^o. If the appearand heir of him who has an Assignation to a reversion of Lands, may have moveable heirship, since Assignations to Reversions, are real Rights.

BY this Act it is declar'd, that the Act ordaining personal Obli∣gations, to prescrive in fourty years, was to be interpreted so, as to extend to all Obligations, prior to that Act, which seems hard; for these who had these Obligations, were in bona fide, not to do diligence; and therefore, some time should have been allow'd to do Diligence, as thirteen years were allow'd in the Act of Prescription 1617. and therefore it would seem, that the Act 29 Par. 5 Ja. 3. Ordaining personal Obligations to ex∣pire in fourty years, rather declares what was Law before, and that such Prescriptions have been formerly allow'd hereupon, the common Law, or some old Act; for this Statute likewise says, the time of the making of the said Acts, so that it appears there have been other Acts besides that one, to which this relates.

REtours to this day express the old and new extent; by the old extent is meant, that to which the whole Lands of Scot∣land were valu'd, by the first general Valuation. And by the new extent is understood the second Valuation, which was long after the former: The old extent is said in all Retours to be tem∣pore pacis; and the new tempore guerrae, or belli, the reason of which, some think to be, that the new extent being made in time of War, there was a necessity to highten the Valuation, for maintaining the War; These Casualties being the greatest part of the Kings Revenue; whereas the old extent is very inconsiderable, being in time of Peace, when there was no necessity for any additi∣on to the Revenue, and when the value of the Money was very mean.

BY this Act, four of the old Council are to sit with the new Council; but this Act is now innovated by the posterior dif∣ferent Constitutions of privat Burghs, Edinburgh, and many other Burghs having far more, whilst others have but the numbers here prescrived, or fewer. And as to Edinburgh, the manner of choosing the Magistrates and Counc••l thereof, is regulated by ••KING IAMES the sixth, his Decreet arbitral, commonly call'd the Sett. Vid. Ja. 3. Par. 5 Act 30.

THe Superiour not entering to his Superiority, to the effect he may enter, his Vassal tines his Superiority for his lifetime; and though this Act determines not for whose lifetime the Superi∣ority is to be lost; yet by an Act of Sederunt Anno 1634. It is or∣dain'd That the Superior tines his Superiority for his own lifetime, and not for the Vassals lifetime, and declares this to be the meaning of the Act.

BY this Act it is clear, that stealing of Dogs, Hauks, and the like, is not to be punish'd as Theft, but only by a fine or Penalty of ten pounds, and in effect this is not contrectatio rei alienae lucri faciendi causa; these Beasts being rather useful for sport than gain, but it may be doubted, if a Fowler, who makes it his Trade, & ita lucrum sacit, may not be punish'd as a Thief, for stealing another poor Fowlers Dog, who lives by that Trade, and whose Dog is his Pleugh, and especially since such Dogs are now bought and Sold.

THis Act containing the pains of such as break Dovecots, Cun∣ninghares, &c. is alter'd, and the Penalty hightned by sub∣sequent Acts of Parliament, viz. by the 84 Act 6 Par. Ja. 6. and by the 3 Act Par. 19 Ja. 6. but these Acts are without prejudice of putting all former Acts to Execution, made against the foresaid Crimes.

THis penal Statute against Ferriers, not making Bridges, is in Desuetude, as are the Prices here exprest▪ Vid. Act 39. Par. 3 Ja. 1. Supra, and Act 20 Par. 4 Ja. 3.

King JAMES the third, Parliament 8.

IT would seem by this Act, that all ordinary Actions must be first pursu'd before inferiour Courts, which is likewise appointed by the 105. Act 14 Par. Ja. 3. But now any Action may be pursu'd before the Session or Parliament, in the first instance. But there can no action be rais'd before the Parliament without special warrand first past in the Articles, for bringing the same before the Parliament. Vid. not. on Act 16 Pa. 6 Ja. 2. Act 76 Pa. 19 Ja. 2. and 27 Act 5 Pa. Ja. 3. supra.

BY this Act which is in present observance, such Assyzers as as∣soilʒie a Pannel unjustly, are to be pursu'd for Error; but such as condemn him unjustly are not, the reason whereof seems to be, that the Law-givers presum'd, that no Assyzer would condemn unjustly, but that probably they might shew fa∣vour in absolving; and if Assyzers were punish'd for condemning, they would never Condemn▪ and since they get no Sallaries, they should not be severely us'd, but though we have no Law al∣lowing assyzes of error, against such as condemn; yet it may be al∣leadg'd that Assyzers may be pursu'd if they condemn a man with∣out any shadow of probation.

2^o. This Act appoints that the Assyzers who are to judge of the Error, be noble persons; for these that are to judge of the Error of others, ought to be more judicious than they; but by a Statut Sess. 1591. c. 117. It is declar'd, that by noble persons is meant only Landed-gentlemen.

3^o. The error must be infer'd upon Principles and Grounds, which were represented to the Assyze, at the time of the Verdict, though the Retour may be reduc'd upon other grounds than such as was than represented, as is clear by the Act 13 Par. 22 Ja. 6. It is also appointed by this Act, that though the Verdict be reduc'd, yet the person assoilʒed unjustly, cannot thereafter be punish'd, there being jus quaesitum to him by the Verdict, and upon the same principle; by the 91 Act Par. 11 Ja. 6. If any speak to the Assize after they are inclos'd, the Verdict is declar'd null, but the Pannel being thereby acquit, cannot thereafter be accus'd.

4^o. The place of Reg. Maj. cited, but not exprest in this Act is, lib. 1. c. 14. where an assize of error is said to consist of twenty four leil and lawful men, though they are call'd here twenty five noble persons.

5^o. It may be doubted from this Act, whether though the Pannel be not assoilʒed; yet it any, or moe assizers who voted to assoilʒe, notwithstanding of the clear Evidences to the contrary, may not be

pursu'd as temere jurantes super assisam, since he is guilty of Perju∣ry, and Perjury is infer'd from an unjust Oath, and not from the Effect; and though it may be pretended, that he follow'd his privat knowledge, yet that cannot defend, since this may be urg'd, for all of them, if all should assoilʒe; nor could any thing deter each particular Assyzer more, than that each may be found guilty, whereas if they thought that they would not be lyable, except the major part assoilʒed, they would adventure upon assoilʒing, as an uncertain Event: But yet the Justices inclin'd not to this Opinion, since no Error was ever pursu'd, except where a per∣son guilty was freed, this being the vindicta publica, allow'd in that case.

It is likewise observable from this Act, That the Assyzers com∣mitting wilful error, shall first be called before the King and His Council, who shall give them a great Assyze, and therefore His Majesties Advocat having pursued an assyze of Error in July, 1681. He first called the Persons who had committed the Error before the Privy Council, and asked at every man Judicially, whether he owned his Verdict, or not, and these that owned not the Verdict, were not insisted against Criminally, but when this Cause came to be called before the Justices. It was alleadged for them, 1^o. That the Verdict bearing only, that the major part had assoilʒed & non constabat, who had assoilʒed, and who condemned, which should hold much more after the Act of Regulations, in Anno 1672 by which it is appointed that the assyzers should mark in their Ver∣dict, who assoilʒed or condemned, to the end it might be known who should be pursued for Error, but this was repelled, because the King being prejudged by the Verdict, their giving in the Ver∣dict made all Criminal, and such as were free should prove their in∣nocence, for else it should be impossible for the King to be able otherwise to prove the guilt, which should hold much more now, because the Assyzers had, by the Regulations, an easie remedie for preventing this, & sibi imputent, who did not mark who assoil∣zied, and who condemned; and though these Regulations intro∣duced that, as a further remedie for clearing this matter, yet that was not necessary; for there were Assyzes of Error, before Assyzers were ordained to be so marked. 2^o. It was alleadged, that this was not wilfull, nor by partial means, which partiality behoved necessarily to be proven by the words of the Act, but this was repelled, because the Error being clear, the Error behoved neces∣sarily to be wilfull, and by partial means, nor was it possible to prove these occult qualities otherwise than ab ef••••ctu. 3^o. It was alleadged, that there being fourscore upon the Pannel, the diffi∣cultie of differencing the Probation might excuse from wilfull Er∣ror, but this was repelled, because the probation adduced was so clear. 4^o. By this Act, Assyzes of Error are only to be allowed, where the Persons Indited are shown before the Assize, in the as∣syze of Error, but so it is, the persons assoilʒed by the former as∣syze were Forfaulted in absence, and were neither then nor now shown to the Assyze; and the reason of this speciality, is, because,

if the Persons assoilʒed were present they might prove their own innocencie, and so clear likewise these who assoilʒed them, but this was repelled, because, by these words Shown before the Assyze is only meaned, that their Designations and not their Persons should be shown to the Assyze of Error, for else there could be no Assyze of Error in Forfaulters in absence, and though the Persons were present, they would not be admitted hoc ordine, to clear their own innocence, and the Assyzers should have assoilʒed, or condemned according to the Probation then led.

FOr Explication of this Act, vid: Not one Act 143. Par. 13. Ja. 1.

THis Act is explained in the Observ. on the 17. Act 1 Par. Ja. 6.

BY this Act, Deeds done, and Rights made by Furious Persons, or Idiots are reduceable, not only from the date of the Brievs, but from the time that these Persons were found to be Idiots or Furious; for the Verdict of the Inquests upon such Brievs is de∣claratory, and finds that these Persons were such from such a time.

Observ, That albeit, from the Stile of the Brieve, of old a Furious, or Idiots deed could only be reduced from the date of the Brieve, and that by this Act, such Deeds be only declared to be Reduce∣able from the time that the Inquest found, that the granter was Furious or Idiot, yet the granter himself being convalesced, may reduce Deeds done by himself, though there was neither Brievs, nor Inquest, finding him Furious, the Furie being clearl•• proven, there being no reason that the negligence of Ag••ats or Friends in not raising Brievs should prejudge the Furious Person, 21. Feb. 1632. and which seems yet harder, the Heir of the Furious Per∣son will be allow'd to reduce, though there was no Brieve nor In∣quest in his own lifetime; and it is very hard to know his condi∣tion after Death, July 26. 1638. for sententia aut decretum judicis non facit furiosum sed declarat; but there is this difference, that if the furious person was declar'd by an Inquest that Verdict proves per se, as to all deeds done after; but if this Idiotry or Furiosity, was not found by an Inquest, it must be prov'n by Witnesses, and when the furious person is re-convalesc'd, deeds done by him af∣ter that are valid, though there be no Declarator, and if there be only lucid Intervals, the deed is presum'd to have been done in the fu∣ry, or lucid Interval, according as the deed itself is reasonable or unreasonable; and for clearing of this, the Lords in a case, Steu∣art contra Steuart, ordain'd Witnesses to be led before answer, to clear what condition the Granter was in, at the subscriving of the deed contraverted, and it would seem that the presumption lyes for its being done during the ••ury, and not during the lucid In∣terval, if the Granter was found furious by an Inquest; b••cause this Act of Parliament sayes, That frae it may be known by the Inquest,

that the persons are Fools or Furious, all Alienations made by them, shall be null.

O••serv. 2^o. This Act of Parliament stricks only against natural Fools and Idiots; and therefore where men become Idiots, by doting or old age, though they cannot recover, or by sickness, where they may recover. It was thought that they could not be found Idiots by an Inquest; and indeed this were very dange∣rous, for many who have been very famous and great men, might have been thus affronted in their old age or sickness, or at least the Exchequer will not grant Tutories Dative to the nearest Ag∣nats, until their condition be first try'd by an Inquest, though the Cravers offer to prove the same by Witnesses, beyond all Excepti∣on; and thus it seems, that though deeds done by Idiots or Furi∣ous Persons may be declar'd null by way of Action; yet themselves cannot be declar'd Idiots otherwise, than by an In∣quest.

Observ. 3^o. That though all deeds done by furious Persons, are here declar'd null; yet sometimes they may oblige themselves va∣lidly is absents, and Pupils may be oblig'd, ••. furiosus ff▪ de act & oblig. & l. si a furioso ff. si cert. Pet. vid. Act 18 Par. 10 Ja. 6.

Observ. 4^o. From these words, and though it be known by the In∣quest, that the Inquest may find a person Idiot or furious upon their proper knowledge, for they are both Judges and Witnesses by our Law. Vid. observ. on the 18 Act 10 Par. Ja. 6.

BY the Act 68, Money and Gold being cry'd up, that is to say, the value of Coyns being rais'd by the Parliament here, which is now usually done by the Council (both as to forraign Coyns and our own) the Parliament did by the 69 Act, ordain that all Debts should be paid with sick Money, and of the same price as the money had course before this Proclamation and Act, which was only to take place, where the Terms of payment were by-past before the Act, which makes me think, that the reason of the Act was, because the Parliament thought it just, that no mans Breach of Ob∣ligation & mora, should be advantageous to him; and if the Cre∣ditor had got his Money in specie, he might have made other use of it, by carrying it abroad, &c. But yet now all Debts may be paid, according to the course that Money has the time of the pay∣ment, for as the Money may be cry'd up, so it may be cry'd down, and to bring both to an equality, the Debitor and Credi∣tor run an equal hazard; for whatever difference may be, as to the taxing the price of other things, si aestimatio rei creditae creverit aut decreverit: yet in Money perpetua est aestimatio l. 1. ff. de contra hend. Empt. For clearing of which Question, Vid. Vin. Quest. Select. lib. 1. cap. 39. and so this Act is in Desuetude, Vid. Act 19 Ja. 3 Par. 3. But though Debts upon privat Obligations, were to be paid with Money at the same avail that the Money was at the time of the Contract, and not the time of the payment; Yet the Kings Taxa∣tions

and publick Dues, were by the Kings own Concession, to be paid according to the value of the Money at the time of the pay∣ment, and are not to be exacted in Money, according as the Money was worth before it was cry'd up, Vid. last Act Par. 3 Ja. 3.

It has been much doubted, whether it was true Policie to cry up Money; for though this seems to be an encouragement to for∣raigners, to Export our Commodity, of which we have too much, and to Import Money, of which we have too little; Yet it is urg'd on the other hand, that in crying up Money, we do but underva∣lue our own Commoditie, and our own Land, and raise the va∣lue of Money, which is the Commodity of a forraign Countrey, such as Spain and other places who have Mines; as for instance, if we have use for carrying our Money abroad, Forraigners will on∣ly give us Commodities conform to the intrinsick value, for they will not consider our raising of it, and so he who got the Money, which was so rais'••, is cheated in as much as the Money is rais'd above the intrinsick value. 2^o. As to our own Commodities at home, either they are rais'd to the same proportion with the Mo∣ney, and then forraign Merchants will not bring in Money for our Commoditie, because they can gain nothing by bringing it in, and so we lose the design of raising our Money, or else the Com∣modities are not rais'd in value to the Money, and so the forraign Merchant does only cheat us; as for instance, if our Money be rais'd a tenth part, the forraign Merchant gives us only nine Pieces for ten. 3^o. This raises the Exchange to our great loss; for he who draws the Bills upon London or Paris, considering that our ten Pieces are but nine, there he will add the value of a tenth Piece to the Exchange. 4^o. If forraign Princes find we have advantage by this raising of our Money, they will either raise their own to the same proportion; and then we shall have no gain, or to a high∣er, and then we shall have loss; and at best, di••ferent rai∣sings of Money will occasion but great variation, and uncertainty in Coyns.

COurts of Guerra here forbidden, seem to have been Courts holden upon Neighbour-feid and Riots, and Skeen founds them upon § ult. tit. 17. de pac. tenend. lib. 2. de feud. Si ministe∣riales alicujus domini inter se Guerram habuerint, comes sive judex in cujus regimine eam fecerint per leges & judicia ex ratione prose∣quatur.

King IAMES the third, Parliament 9.

THis Act is Ratifi'd by the Act 30 Par. 11 Ja. 6. Vid. Observ. on that Act.

King JAMES the third, Parl. 10.

THough all men be allow'd to bring in Victual from for∣raign Countries by this Act, yet the Importation of Victual from Ireland is Prohibited by Act 3 Sess. 3 Par. 2. Ch. 2.

THe Act concerning Cruives, is explain'd in the Act 11 Par. 1 Ja. 1. Which is the Act here related to.

THis Act appointed the taking more than just ••raught, to be a point of Dittay, because it was oppression, and irregular exa∣ction, and this is still taken up as dittay in Circuit Courts; yet the Council does also punish it, and I think, the Master of the Ground where the Ferry is, may punish such irregular Exacti∣ons.

THe unlaw of such as burn Muires, is by this Act five pounds, which is renew'd Act 71 Par. 6 Ja. 4. but by the 11 Act Par. 4 Ja. 5. The punishment is five pounds for the first time, ten for the second, and twenty for the third time, and these penal∣ties are Ratifi'd Act 84 Par. 6 Ja. 6.

THe using other Barrels than the Hamburg Measure, is made point of Dittay, because other Barrels were lookt on as false Measure; but our Barrel now is, ten gallons for Salmond, and eight and an half for Herring.

THe Act here related to, is Act 7 Par. 1 Ja. 1. Where this Act is Explain'd.

PVrprusion is the usurping and appropriating our Superiours Lands or High-wayes and Purpresture is much now in Desuetude. The ordinary Remedy now, being actions of Molestation, or De∣clarators of Property; but Purpr••sion is not absolutely in Desue∣tude: For by the 5 Act 16 Par Ja. 6. It is ordain'd that such as Till the Kings Parks, or Commonties, shall be lyable in Purprusi∣on, and punish'd according to the old ••aws, the same being Try'd, either by way of Molestation, or before the Lords of Session; and the old Punishment was an arbitrary Punishment, and the loss of his Lands, which he held of the King, and the reason why that Act did appoint the Tryal to be by Molestation before the Lords was, because of old it was only Try'd by an Assize before the Justices. Vid. lib. 1. cap. 5. num. 4. & lib. 2. cap. 74. R. M. It is doubted, whether Vassals of Regalities Building upon the Streets of Burghs of Regalitie, may be punish'd for Purpresture, or

whether the Building a Foot or two furder than formerly, even in Burghs Royal, would infer that punishment.

From these words of the Act, That nae Vassal, nor Sub-vassal, or other Tennent under the Baron, has Power or Jurisdiction to hold a Court. It is fit to observe, that this holds not only in Purprusi∣on, though that be the case mention'd in this Act; but generally, Vassals nor Sub-vassals cannot hold Courts, except they be Infest, cum curiis; and even then they have only power to hold Courts for payment of their own Rents, or such other things as necessarly follow the labouring of Land, except the Vassal be a Baron, in which case he has power to j••dge ryots, and unlaw for Bloodwits, as Sheriffs do. This Act is not ••o be found in the black Impression.

There is an Act omitted by Skeen, which is the last in the black Impression, whereby the Parliament delegats their full Par∣liamentary power to some of their Number, for hearing some Am∣baci••itors, and deciding some Causes, licet delegatus non potest delegare, and such Delegations of the Supream Power may be dangerous.

King JAMES the third, Parliament 11.

THough this Act appoints Barons and Lords, who led their own Men or Vassals at that time to the Host, to be lyable for the skaith they do, in coming to the KINGS Host; Yet this Act is now upon the parity of Reason, extended to all Officers, who are now come in place of these. It may be al∣leadg'd from this Act, that it is not lawful for such as go to the KINGS Host to take free Quarter, or Meat and Drink gratis, which we call Free-quarter, which may be further clear from cap. 5. Stat. 1. Rob. 1. Where these that come to the Host, are or∣dain'd to be serv'd for their Money, and that they take nothing, but at the sight of the Baillies, and others there mention'd, un∣der the pain of being punish'd as Robbers: But it is still doubted, whether the Countrey may be put to be the first advancers, when the Militia is rais'd in such haste, that these who are remote, cannot provide present money, and the Countrey into which they are sent, have by their irregularities occasion'd their coming, it being unjust that innocent Shires who send in their Militia, should be put to expences, in levying and entertaining men to repress the irregularities of others.

IT is observable from this Act, that it is not the Parliament but the KING, without mentioning consent of Parliament, who commands the Proprietars of Castles to furnish them for Defence against the Enemy, with Victual and Artillery, and the reason of this is, because there was no Fort nor Strength, or turris pinnata, call'd Tower-houses, allow'd to be build in Scotland, without an ex∣press Warrand under the Kings own hand, this being one of the effects o•• his Prerogative, in the sole disposing, and making of Peace and War; and since Arms cannot be born without his Li∣cence,

much less should Strengths be built: and from these grounds, and the practise of other Nations, it was contended lately, that the King may Garrison any mans house, when he and his Council find the hav∣ing a Garrison in that place, for maintaining the Peace of the Coun∣trey is necessary; But Craig is of opinion, that it is Treason, or at least Purpresture, to deny the King the use of our Castles, or Towers in such cases, Jure anglorum turres omnes, quia ad defensionem, s••u munitionem, regni extructae tantum praesumuntur, ad regem per∣tinent, ad quem & regni defensio; quod si idem & jure nostro observa∣ri quis dicat, non, ut opinor, a••errabit, cur enim qui turrim sive for∣tal••••tium suum regi denegat, crimen laesae Majestatis incurrit, magis quam si equum, aut aedes, aut rem aliam, nulla alia ratio probabilis reddi potest, nisi quod negatio haec ex jure feudali, regem & dominum videtur privare jure fui dominij, & species quaedam purpresturae est, & alias res nostras principi poscenti possumus negare sine perduellionis periculo. Which agrees with the opinion of forraign Lawyers who treat of the power of Kings in general, Fritz. de jur. praesidij, pe∣nes quem Monarchia, is urbes, arces occupare potest, ••is{que} pro tuenda securitate publica praesidia imponere potest. But in this as in all such cases, the prerogative should not be made use of, except in cases of extream necessity, and even then the Heretor is to be repaid, if he must hire another House, as at Sea in Storms, all the par∣ties concern'd in the Ship are to contribute for repairing his loss, who for lightning and securing his Ship, is forc'd to throw his Goods over-board.

IF a Woman who has a Conjunct-fee, alienat it during her mar∣riage, the alienation is 〈◊〉〈◊〉, except she ratifie the same judici∣ally outwith the presence of her Husband upon oath, never to revock it, and then the alienation is valid, but though this Act sustains a judicial Instrument under the Seal of the Judge, as a suf∣ficient probation; yet now something must be produc'd under her own hand, or by two Notars, and the Lords would not sustain the Act of Renunciation, though under the hand of both Judge and Clerk, February 15. 1678. Gordon contra Maxvel. The rea∣son of which Decision I conceive to be not because this Act to which the Decision is contrary, is only set down as a Memorandum, and relates a Decision of Parliament, without Statuting any thing thereupon, for confirming the same, for the meer setting down this Decision among the Acts of Parliament, gives it the strength of an Act; but because the time of that Act▪ one Notar was suf∣ficient, but now, either a Woman must subscrive her self, or two Notars for her.

Observ. 1^o. That Decisions of Parliament bind as Laws, though they be not set down as general Laws, for the inserting them amongst Laws, make them equal to Laws. Some times Decisi∣ons by the King, are inserted amongst the Acts of Parliament, as cap. 16 David 2.

Observ. 2^o. That though an oath is sufficient to confirm the Re∣nunciation of a Joynture stante matrimonio; Yet it is not suffici∣ent

to confirm a personal obligation, granted by a Woman, stan∣te matrimonio, as is decided, November 8 1677. Sinclar contra Richardson and his Spouse; the reason of which disparity seems to be, that in Conjunct-fees, she is domina, and the Obligation is not to take effect till after her Husbands death: But in other Obliga∣tions, where the design is to bind her self, the Obligation is in∣valid, because she being sub potestate mariti, cannot oblige her self; and upon the same ground it is, that Dispositions granted by He∣retrixes stante matrimonio, will be sustained, they having therein plenum dominium, as to the Property; and even personal Obliga∣tions for sums of Money granted by a Woman, who was an ap∣pearand Heir, there being a Back-bond granted to her, declaring that she should not be thereby personally oblig'd, was sustain'd to be the foundation of a Comprizing; for as she might have dis∣pon'd her own Heretage expresly, so she might have lawfully granted an Obligation, whereby the same might have been Ad∣judg'd, January 23. 1678. Pringle and Bruce contra Paterson. vid. Stockman. decis. 59.

BY the Canon Law, Laicks have no power of choising or electing ••hurch men, c. Quisquis 43. c, massana. 56. de elect. & elect po∣test. So that the priviledge here granted, seems contrary to the Canon Law; But as the King of France had power by the Concor∣data with Pope Leo 10th, to nominat Bishops and Abbots; so our King had the nomination of Bishops and Abbots, and the provisi∣on of them belong'd to the Pope, as is clear by the 125 Act 7 Par. Ja. 5. Which though this Act says, did belong to our Kings by the Priviledge of their Crown (for prerogative was then call'd privi∣ledge) yet it is con••e••••, that they deriv'd this priviledge from the Pope, Act 53 Par. 5 Ja. 4. For understanding this Act, it is ne∣cess••ry to know, that if the Kings who had these priviledges, did not nominat within six Moneths, the Pope might confer the Bene∣fice as he pleas'd: and if the King did nominat an unfit person, the Pope might refuse him; and the King was oblig'd to n••me ano∣ther within three Moneths, vid. past. de benefi cap. 8. But our Kings not acknowledging this power of precluding, It is Statute by this Act, that our Kings may present at all times, till the Prelate named by the Pope show his Bulls of Provision to the King and Chapter, and though the King should admit to the Temporality a Prelate before showing of his Bulls, it will not be prejudicial to the Kings priviledge of presentation, that is to say, that though the King had admitted a person, whom the Pope had rejected as unfit, he might yet of new present, and the Pope should not have Right, jure devo∣luto.

FOr understanding this Act, it is fit to know, that regulariter beneficia vacatura, could not be purchast; and yet the Pope had reserv'd a power to confer, even these ex plenitudi••e potesta∣tis, cap. proposuit de confer. praebend. 6. decret. But this Act i••

made to annul all such Provisions to Benefices, not yet va∣cand.

King IAMES the third, Parliament 12.

THis Act giving the Warden power to continue his Courts, shews that the continuance of Courts, is not of its own nature lawful; and therefore no Judge may continue his Courts, except he have an express Warrand for it, since such as are cit∣ed, may be thus prejudg'd by delays: But since the King is the Foun∣tain of Jurisdiction, it is thought the King may grant such Warrands, tho there be some cases wherein the King has restricted himself by ex∣press Statute, as in Criminal Courts, which are declar'd to be peremp∣tor by the 79 Act 11 Par. Ja. 6. Where it is observable, that these Courts are declar'd not to be con••inuable by the Kings spe∣c••••l will and direction, to shew that continuations of Courts de∣pended upon him; and generally it is by the will of the Letters, that it is known what Actions abide continuation or not; and though the Wardens Courts be Justice-Courts, yet it is thought they may be continued, notwithstanding of that posterior Act.

BY this Act the breakers of the King or Wardens safe Conduct, are punishable by death, which is conform to the Civil Law, l. 1. ff. ad Leg. Jul. Majest. and to the practice of other Nations, Christin. tit. 4. Art. 8. What difference there is inter pacem, se∣curitatem, salvagardiam & salvum conductum. Vid. afflict. lib. 3. tit. 16.

THough the selling or buying of corrupt Wine, after it is found to be such, be declar'd punishable by death; yet the selling corrupt Wine willingly, even before that, is punishable: and though selling corrupt Wine in the general be punishable; yet this must be restricted to the case of knowledge, for he who sells or buys without knowing of it to be corrupt, or to have been found so, is not punishable by death.

King JAMES the third, Parl. 13.

OF old every Heretor brought his own men to Weapon-showing, and to the Kings Host, as is clear by the 81 Act Par. 11 Ja. 3. and all these were commanded by the Sheriffs, Lords of Regalities, and the Kings other Officers, and were call'd together by Letters patent under the Pri∣vy Seal, directed to these Officers, as is clear by this Act; But

now the Militia is commanded by Colonels, and chosen by the King, and are call'd together by Proclamation, and Letters from the Council, subscriv'd only by the Chancellor or President of the Council. From this and other old Writs, it is clear, that the Privy Seal was then the Seal of the Privy Council, but now they have a Seal peculiar to themselves, which is call'd the Signet of the Privy Council. Vid. Annot. on Act 30 Par. 3 Ja. 4.

The Kings Rents of old were Govern'd by the Kings Master-houshold and Compt-roller, and the Council, but now by the Ex∣chequer, and the Master-houshold has no interest in them, ratione officij; that Office belonging Heretably to the Earl of Argile, is now extinct by his Fore••alture, But the Office of Compt-roller is engrossed in the Thesaurers Office: By this Act, such as detain the Kings Rents, are to be distrainʒied, that is to say, pursu'd in the ordinary way, viz. by poynding the ground for their reddendo, by Hornings upon their Tacks; but though the uplifting the Kings Feu-duties was design'd once to have been by quartering, yet this was thereafter found illegal; nor could the Excise be so lifted, if that way were not warranted by Parliament, there is no special punishment exprest here against the Officers. who detain the Kings Rents: But by the Civil Law, these who abstracted publick Mo∣ney, or converted it to their own use, Erant rei peculiatus, qui olim paenâ quadrupli postea deportatione puni••bantur, magistratus vero qui durante officio publicas pecunias abstraxerunt capite puniuntur, l. un. C h. 1. but this Crime only holds in the misapplying of pub∣lick Money, and not in the withholding the Kings Rents.

Nota. This and the next Act bear not to be made with con∣sent of the three Estates of Parliament, but only that the Lords think expedient; by which I think must be mean'd the Lords of the Articles, or else this and the next Act being Concessions of the Barons, in what related to themselves, they were not thought fit to be drawn as Acts of Parliament, but only as concessions; but I incline rather to think that by Lords here is mean'd, the Lords of Articles, because the Acts 95 and 96 of this Parliament bear the conclusion of the Lords of the Articles, though some∣times by the word, Lords, are mean'd the three Estates of Parlia∣ment, as in the 30 Act Par. 7 Ja. 2.

BY this Act the Rose-noble was made the standart of all the Gold, and it was of twenty two Carrets and ten grain fineness, but now our Gold is only of twenty two Carrets fineness, that Gold being too soft, and consequently, subject to be wasted.

By this Act also the Warden of the Cunʒie-house were first in∣stituted, for understanding of whose Office, it is fit to know, that the Master of the Cunʒie-house has the care of Coyning, and as checks over him, are for trying the fineness, the Essay-master, and for trying the weight are the Warden, who trons the Money, and

the Counter-warden, who weighs after him, and is his Check, and over them all is the General of the Mint.

BY this Act Respits are discharg'd, whereby Justice is delay'd; and it's here said, that Respits are more against Justice than Remissions; the reason whereof seems to be, that Remissions are only granted after some Tryal; but Respits are granted more easi∣ly, and may be sought more frequently, and that before the state of the case be examined; nor is the Party injur'd, assyth'd here as in Remissions: For the same reason also, Precepts for continu∣ing Justice Courts, are discharg'd, and the Justices allow'd not to respect them Act 79 Par. 11 Ja. 6. and by the 47 Act of that same Parliament, they are discharg'd also; for that Act stricks a∣gainst Respits, as well as against Protections.

THe Act anent Ferries is Explain'd in the observations upon the Act 75 Par. 10 Ja. 3.

OBserve 1^o. From this Act, that the Silver of Scotland should be 11 penny fine; for though this Act says, that it shall be the fineness of 12 penny fine; yet the meaning of that Act is, because 12 penny fine is the finest imaginary value, but there must be still a twelfth part allow'd of alley to make the Siver malleable; and albeit the punishment in the Act against these who work not up to this fineness be arbitrary, yet it is declar'd to be punishable by death, by the 56 Act Par. 6 Q. M.

Observ. 2^o. That the ordaining this Act to take effect after for∣ty days Proclamation, implys, that regularly Acts may be put in execution sooner, as by the 20 Act Par. 3 Ja. 3.

King JAMES the third, Parliament 14.

THis Act is only a Temporary Statute, ending with these who swore to observe it, but the bringing Malefactors to the Bar in sober manner, without assisters, is command∣ed by many Acts, and though by this Act it seems, that the Justices cannot hinder some of the Pannels friends to stand with him upon the Pannel; that is to say, to stay at the Bar, and that four friends are allow'd to the Pursuer, and ten to the Defender, by the 41 Act Par. 6 Q. M. Yet the Justices do suffer few or none to stand with the Pannel, as they see occasion for it.

THe Crowner of old received the Porteous Rolls, that is to say, the names of such Malefactors as were to be pursu'd at Justice-airs, but now the Justice Clerk keeps it himself, and gives it to the Macers of the Criminal Courts, or Messengers who cite the persons to be pursu'd.

THe Defenders in slaughter are by this to be cited upon six dayes to find Caution, or else are to be denunc'd Rebels; but now if the Criminals be not in prison, they are to be cited to find Cau∣tion upon fifteen dayes, but if they be in prison they may get an Indict∣ment to answer upon twenty four hours.

BY this Statute it is clear, that a person apprehended and incar∣cerated, must first be maintain'd upon his own expences, and if he be not able to aliment himself, the Sheriff is to aliment him upon his Majesties allowance, and by a late Act of the Justice Court The Keeper of the Tolbooth of Edinburgh is discharg'd to receive any Criminal Prisoner, till he who enters him Prisoner, find Cau∣tion to aliment; for before that Act, poor people were starv'd and ruin'd by their Imprisonment.

THis Act is in Desuetude, for nothing is due now to Crown∣ers, because they do not attach as formerly, and this was the price of their pains or Fee.

THis Act is in Desuetude, for no Sheriff tholes now an Assize, the last nor no day of a Justice-air, except he be pursu'd for some particular Crime, or for Malversation in his Office.

BY this Act if the Sheriff hear of any Convocations, he should charge them to cease, and if they refuse, he should continue the Court, and pursue them, and the punishment is Imprisonment for a year; from which Act, it was argu'd justly in the Earl of Caithness case, that though men refus'd to dissipat at the Sheriffs desire, he could not summarly fall on them, and kill them, for that were too dangerous a power to be given to any Sheriff, and all that he could do by this Act, was to acquaint the King, and then pursue them.

THis Act ordaining the Causes of Widows and Orphans, Kirk-men, &c. only to belong to the Cognition of the Lords, is in Desuetude, and these Actions do properly belong to the Commissariot Court.

THe Burrows of Scotland have liberty to meet in time of Parliament, and to propose as a Body, and third Estate, any overtures for Trade, but no other state of Parliament can lawfully meet, this be∣ing a singularity indulg'd to them for the good of Commerce; and the subsequent Acts are propos'd by that Estate to the Parliament, and by them turn'd into Acts, as appears by the Rubrick it self.

VId. Act 12 Par 2 Ja. 3. Vid. observ. on 47 Act Par. 1 Cha. 2. and on Act 66 Par. 14 Ja. 2.

THe Act here ratifi'd, though not exprest, is Act 30 Par. 5 Ja. 3.

THough this Act allows the Burrows to meet every year at Inner-••eithing only, yet thereafter they are allow'd to meet four times in the year, at what place they shall think most expedient, Act 64 Pa. 5 Ja. 6. and the burgh of Edinburgh, with six of the rest may conveen them, Act 119 Par. 7 Ja. 6. Now they meet in July at Edin∣burgh, Pearth, Dundee, Aberdene, Stirling, and the Provost of the Town in which they meet, being always President without Ele∣ction, and though the Fine of each absent Burgh be here five pounds, yet it is made twenty pounds, Act 119 Par. 7. Ja. 6.

THis Act adds to the ordinary annexations, that the King shall be bound by his oath at the Coronation, that he shall not alie∣nat the annext Property, which oath is given by all the succeeding Kings.

It is observable also in this Act, that the Kings great Seal, and the Seals of all the Prelats, Lords, Barons, and Commissi∣oners for Burrows are appended, which was usual in these days, in all Concessions granted in Parliament, and I have several Patents of honour, granted by the King in Parliament, wherein the Kings great Seal was appended, as now it is to the Patent; and the Seals of all the Ecclesiasticks, were appended upon the right side, and these of the Laicks on the left side, each Seal hanging from a Label or Tag, on which the owners Name was writ, and in anno 1558. a Commission to the Lord Seton to be Ambassador in France, was thus Seal'd by the King, and Sign'd by the Nobility, and by the 191 Act Par. 13 Ja. 6. The Morning-gift of the Abbacy of Dum∣fermling is said to have been under the Kings great Seal, and the Seals and Subscriptions of the Estates in favours of Q Ann.

THis priviledge was granted by Malcolm 2 leg. M. c. 3 num. 4. but both that priviledge and this Statute, are now in Desue∣tude, so that now the Crowner has none of the Malefactors Horses.

THis Act appointing that strangers be well us'd, and that no new Customs, Impositions or Exactions be put upon them, seems to limit the Kings prerogative acknowledg'd by the 27 Act Sess. 3 Par. 1 Ch. 2. by which it is declar'd, that the King may dispose and order Trade with Forraigners as he pleases, a consequent of which Prero∣gative is, that he may either discharge Trade with Forraigners, or burden it as he pleases, since by this Act no new Imposition can be laid on. But the answer to this is, that this Act relates to strang∣ers, and not to the Kings own Subjects, so that though Strangers come, they should be civily us'd by this Act, yet they may be de∣bar'd by that Act.

THis Act granting a Commission to Examine the Laws, and put them in one Book, took effect in Skeens Edition of the Acts of Parliament, and Regiam Majestatem, in which many of the old Acts, yet to be seen in the Records of Parliament, are left out.

Observ. That the Acts of Parliament are call'd the Kings Laws, and not the Acts of Parliament, for the King has only the Legislative power, and the Estates of Parliament only consent. The Books of Regiam Majestatem, are likewise numbred amongst our Laws, but what is mean'd by the words (Acts and Statutes) added in this Act to the Kings Laws, and Reg. Maj. I do not understand, ex∣cept by these be mean'd the Burrow-Laws, and the Statutes of the Gildry, and these other Books that are bound in with Reg. Maj.

Notes

• ACT 2.
• ACT 3.
• ACT 5.
• ACT 6.
• ACT 7.
• ACT 8.
• ACT 11.
• ACT 12.
• ACT 13.
• ACT 14.
• ACT 16.
• ACT 17.
• ACTS 18 & 19
• ACT 20.
• ACT 23.
• ACT 25.
• ACT 27.
• ACT 28.
• ACT 29·
• ACT 30.
• ACT 31.
• ACT 32.
• ACT 33.
• ACT 34.
• ACT 35.
• ACT 36.
• ACT 37.
• ACT 39.
• ACT 40.
• ACT 41.
• ACT 42.
• ACT 43.
• ACT 44.
• ACT 47.
• ACT 48.
• ACT 49.
• ACT 50.
• ACT 52.
• ACT 54.
• ACT 55.
• ACT 56.
• ACT 57·
• ACT 58.
• ACT 60.
• ACT 61.
• ACT 62.
• ACT 63.
• ACT 64.
• ACT 65.
• ACT 66.
• ACT 67.
• ACT 68 & 69
• ACT 70.
• ACT 71.
• ACT 73.
• ACT 74.
• ACT 75.
• ACT 76.
• ACT 77.
• ACT 78.
• ACT 80.
• ACT 82.
• ACT 83.
• ACT 84.
• ACT 85.
• ACT 86.
• ACT 87.
• ACT 88.
• ACT 89.
• ACT 90.
• ACTS 91, 92.
• ACT 93.
• ACT 94.
• ACT 95.
• ACT 96.
• ACT 98.
• ACT 99.
• ACT 100.
• ACT 101.
• ACT 102.
• ACT 103.
• ACT 104.
• ACT 105.
• ACT 106.
• ACT 107.
• ACT 108.
• ACT 111.
• ACT 112.
• ACT 113.
• ACT 114.
• ACT 115.