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

King JAMES the fourth Parliament 2.

THat part of the Act appointing the intromission with the Kirk Rents, to be a point of Dittay (that is to say, to be a Crime) is now in Desuetude; for they have no other priviledge here, more than Laicks; but to intro∣met with their Rents, either by Arms or open Force, is the Crime of oppression with us, and was punish'd by the Romans, lege Ju∣lià de vi, per deportationem in liberos homines, & ultimum supplicium in servos.

Observ. That by this Act, Parsons and Vicars are founded in jure, as to Teinds, for it is declar'd a Crime to intromet without a right from them.

I Understand not how it is said here, that the King could not discharge any part of the Taxation granted to him, though it was granted for a particular or publick use, for it is ordinary and lawful to Kings with us, to discharge privat parties their particu∣lar proportions, except the contrary be expresly provided, and the offer be so qualifi'd by the Parliament; but here the King was mi∣nor, as appears by the subsequent Act, or rather this Taxation be∣ing granted originally for maintaining an Ambassador for the Kings, Marriage, as is clear by the Act, and so ad particularem effectum, it could not be diverted from that particular use, lest else the Em∣bassie should have fail'd; And from this we may observe, that what is granted for a general and publick use, cannot be otherwise ap∣ply'd or taken away.

IT is observable from this Act that the King was Minor, and that is the reason why he could not discharge something here exprest, which falls not under his annex'd Property.

THe Parliament here recommends only to the King, that his Majesty shall cause his Wardens observe the days appoint∣ed for Truce, and they meddle not with it, because what con∣cerns Peace and War, belongs to the King, and not to the Parlia∣ment.

THe restrictions here put upon the King, proceeded from his minority.

Nota, Councellours are made accusable to the King and Parlia∣ment of their Council, till the next Parliament; for the words are, and shall be responsal and accusable to the King for their Counsel; but

this was in the Kings minority, and therefore there were greater reason that they should have been lyable for their Counsel, than when a King is major, for then he may judge of their advice; in which case, nemo tenetur de concilio nisi doloso aut fraudulento. But it may be infer'd from this Act, that regulariter, Counsellours are not lyable for what they do, else this Act had been needless, obliging them to be lyable only till the next Parliament. But it is also observable, that this Act was made by these who had risen in rebellion against King James the third, under pretext of his Sons Command, though in effect they forced him when he was a Child, to head them against his Father, and in this Act they force him to make use of their Counsel; and yet the Act bears only, that the King humbled himself to abide at their Counsel; the same per∣sons made an Act declaring that Rebellion lawful, which is yet ex∣tant amongst the black Acts, but was Expung'd as most abominable and Rebellious.

THough this Act appoints that our Gold and Silver shall be of the fineness of Brudges; yet by the 96 Act 13 Par. Ja. 3. and 56 Act 6 Par. Q. M. the Silver is to be eleven penny fine, and the Gold twenty two Carret fine, so that the best Money being but twelve penny fine, and the best Gold twenty four Carret fine; there is a twelfth part of alley allow'd in either, and so our Silver-work, and our Coyn should be of the same fineness; but this Act has been in Desuetude, as to Silver-work, for which the Gold-smiths alleadge, that the people are to be blam'd, and not they, since the people will not go to the price, and they do the people no wrong, since they proportion the price to the intrinsick value. We observe both in our Plate and Coyn, the same Standart with Eng∣land; but the Standart of the French Plate is finer than their Coyn, to discourage their Subjects from having much Plate, and encouraging them to bring it to the Mint, for current Money. The reason that is alleadg'd, why this alley is allow'd to both Gold and Silver is commonly said to be, because they are not malliable without some mixture of Copper, but the contrary will appear to these, who use to refine Silver with Lead, and Gold with Antimony, by which, Gold and Silver may be brought to the exactest fineness, without all mixture, and they are then most malliable and soft; but the true reason why the Copper is added, is, because without it, both Gold and Silver would be too soft, and so too much subject to wearing and loss, as appears in the English Rose-nobles, and the double of Hungarian Ducats, and the Venetian Cequins; for which cause the Emperor now adds more Copper to his Ducats; and the English make no more Rose-nobles, or any other Gold so fine.

IS formerly Explain'd in the 11 Act Par. 1 Ja. 1.

THe Prince of Scotland was Earl of Cumberland, whilst that Countrey belong'd to this Crown, but when the Steuarts came to the Crown, which was in the Reign of Rob. the 2. Their Heretage which was Renfrew, &c. was Erected in a Principali∣ty. That there was such an Erection, is clear from the Revoca∣tions made by K. Ja. 5. and K. Ja. 6. Where all Dispositions of Lands annex'd to the principality, are Revocked, but the Ere∣ction it self is lost. However to supply that, the Rights made by the King bear still to be as Prince when there is no Prince, and as Administrator to the Prince when there is a Prince, and the Re∣venue of the Principality is manag'd in cumulo, with the rest of the Kings Revenue, when there is no Prince, but when there is a Prince, he has a Chamberlain, who receives and compts for the prin∣cipality a part.

It was debated January 1680. whether when there was no Prince existing, the Vassals who held of the Prince, were to be repute Vassals holding of the King immediatly; or as Vassals hold∣ing still of the Principality, and so holding of a Subject, the Principality being still a distinct See, whereof the King had only the Administration. But it was found by the Lords, that when there was no Prince, they held of the King; and therefore they found, that the Laird of Lusses Marriage fell to the Kings Dona∣tor; though it was alledg'd that his Marriage of these Lands could not fall to the King, since he held other Lands Taxt Ward of the King, and he who holds Lands of the King, is not lyable in a Marriage, for Lands holden of a Subject, and consequently, he being content to pay the Taxt Marriage to the King, the ordinary avail of his Marriage could not be crav'd, for Lands which he held of the Prince, who was but a Subject. The reasons of which De∣cision were 1^o. That Appanages given to Children, do in their own nature imply to be only Temporary, and whilst the Child exists to whom it is provided for an Appanage; and therefore since we have not the foundation of the Principality it self, we must construct it to have been thus erected. 2^o. By this Act it is ordain'd, that when there is no Prince, the Vassals of the Princi∣pality shall come to Parliament, and none can come to Parlia∣ment 〈◊〉〈◊〉 such as hold of the King; and that same Act says, till the King have a Son, who shall be immediat betwixt the King and them, which clearly demonstrats, that till there be a Son, they hold immediatly of the King. 3^o. This is yet more clear by the 16 Act 1 Par. Ch. 1. and the 58 Act Par. 1 Ch. 2. Whereby Lands holding of the King and Prince, are aequiparate quoad all legal ef∣fects. 4^o. When the Kings comes to any Estate jure privato, by Succession or Forefalture, these Lands alter their nature, and the Vassals hold of the King as King, and are not consider'd as hold∣ing of a Subject as formerly; and therefore the same should hold when the principality by the not existing of a Prince, returns to the

Crown. 5^o. By an express Decision observ'd by Dury. It is found, that whilst there is a Prince, the Lands of the Principality hold of the Prince, but when there is no Prince, they hold of the King. 6^o When there is no Prince, the King Dispones the Casualties, and sometimes the Lands, as he does these of his own Property, and it were absurd to assert, that when there is no Prince, the King Dispones as Administrator, for else he behov'd to be comptable; nor can there be an Administrator where there is no Pupil: but the King is term'd sometimes an Administrator ex errore stili, or ad majorem cautelam, or else the King is truly made to Dispone both as King and Prince to keep up the Principality as a distinct Fee and Erection, lest otherwise the knowledge of the Lands might perish, the Erection being lost. 7^o. This is clear by the practice of forraign Nations, Perez. ad tit. 1. lib. 10. cod. num. 10. Ter∣rae quae in Appanagium dantur penes domanium semper manent solo usu∣fructu provisionali••er concesso, alias contingeret Regium Domanium sen∣sim diminui.

MEn used to give their best Horse or some other acknowledg∣ment to great men, and especially to Chiefs of Clans, for their protection, and these are here discharg'd, and are a kind of Black-meal, they are now intirely in Desuetude.

Nota, Possession past memory of man is not sufficient in unwar∣rantable exactions & oportet consuetudo sit rationabilis alias non tenet.

THis Act is in Desuetude, for actions of poinding the Ground, are now pursu'd for recovering bygone annualrents, in the ordinary Form of Process.

THe Forcing the Kings Tennents to do Service, is punish'd as oppression by this Act, but the punishment is not specifi'd, and though Oppression be punish'd by death, Act 42 Par. 4 Ja. 4, and by the Act 88 Par. 11. Ja. 6. Yet I think that here Op∣pression could not reach that far, and though it be ordain'd to be a point of Dittay (that is to say a Crime) by this Act, yet such Oppressions use to be pursu'd before the Council, Though some Oppressions may be pursu'd before the Justice Court, or Council, as is clear by the 2 Act 1 Par. Ch. 1. and Oppression is a general name for Violence, as Stellionatus is in dolo.

Notes

• ACT 7.
• ACT 9.
• ACT 10.
• ACT 11▪
• ACT 12.
• ACT 13.
• ACT 15.
• ACT 16.
• ACTS 18 & 19
• ACT 20.
• ACT 21.