Some doubts & questions, in the law, especially of Scotland as also, some decisions of the lords of Council and Sessions / collected & observed by Sir John Nisbet of Dirleton ... ; to which is added, an index, for finding the principal matters in the said decisions.

D. 180. 2. June 1674.

THE Kings Majesty, having by two Letters to the Lords of Sessi∣on, presented Mr. David Balfour of Forret, and Mr. Thomas Mur∣ray both Advocates, to be Lords of the Session: It was moved by one of the Lords, that seing by the Law and Acts of Parliament, these who are to be admitted to be Lords of Session, should be tryed; Therefore the Tryal should be such as is intended by the Law; the very Notion of Tryal importing, at least a serious, if not a strict and exact way of Tryal.

This was moved, because the way of Tryal had become of late so per∣functorious, and dicis causa, that it was ridiculous, and in effect a Mock-Tryal: Some of the Lords being appointed to examine these who were named by the King, and after they had asked some trivial Questions, hav∣ing

made Report, That they found them qualified; albeit it was not on∣ly known to the Examinators, but to all the Lords, and notour to the World, that they were altogether Ignorant both of Law and Practique; and did acknowledge it themselves, not dareing to expose themselves to sit in the Outer house as Ordinaries; they prevailing with others of the Lords to go out and officiate for them as Curats.

1. It was urged, that the Estates had considered the Interest of the King∣dom; all Estates being concerned in that Judicatory, that the Lords should be Persons of great Abilitie and Integrity, seing their Lands and Fortunes and greatest Interests, are the Subject of their Jurisdiction and Decisions: and therefore it was provided by diverse Statutes and Acts of Parlia∣ment, they should be qualified Persons, and found upon Tryal to be such.

2. His Majesties Letter required, that the Persons now named, should be examined effectually.

3. By diverse Acts of Sederunt, and in special one upon the Kings Letter, for the time, the way of Tryal is prescribed, which is most exact.

4. The Oath of Admission, that the Lords should be faithful, has and ought to have Influence upon all their Actions, as Lords of the Session, that they should be done faithfully; and the Tryal of Lords for the Reasons foresaid, being an important Act of Duty, ought to be done faithfully and sincerely, and cannot be done otherways without breach of Oath.

5. To pretend to obey the Law, and the Kings Letter (which re∣quireth an effectual Tryal) in a way which is superficiary, and evi∣dently ineffectual; it is a Cheat, and Circumventio Legis; which in others is hateful; but in Judges, who are Antistites Juris, is abominable, and in∣consistent with the Honour and Integrity that should be expected from the Judicatory.

6. If there were no Tryal at all, the Lords would be passive, if Per∣sons not qualified should be named; but being enjoyned to try effectual∣ly, if they receive them without an effectual tryal, they are not free of blame; and are accomptable to God, and his Majesty, and to the Par∣liament.

To all these Reasons, It was Answered, That at this time the way of Try∣al that had been for a long time, should be continued at this time; and that the Motion was upon some design.

The Mover did purge himself upon Oath, that he had no Design, but to do duty; and did attest the President, that before this occasion they had spoken often to that purpose: and did represent, that this is the fit time to put the Law and Statutes in execution; The Persons named being Advocats, and Persons presumed to be able to undergo the Tryal; so that it cannot be thought that there is any thing of Design against their Persons: That it cannot be denyed, but the late way is abusive; and antiquitas erroris, or abusus, cannot be thought and pleaded to be custom: That in the Year 1629. the Lords by an Act of Sederunt, had renew∣ed and ratified all the former Statutes anent the Tryal and Admission of the Lords; and ordained them to be observed; That since that time the Troubles interveened and continued long, so that Prescription cannot be

pretended for an abuse which had occasioned so great prejudice and clamour.

It was Carryed, That the Examination should be as it has been of late: and upon the Report of Gosford and Craigie, (appointed to examine them) they were admitted: Gosford was of Opinion that there should be another way of Tryal.