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 Marry,  
King James the Sixth,  
King Charles' the First,  
King Charles' the Second.    
Wherein 1. It is Observed, if they be in Desuetude, Abrogated, Limited, or Enlarged. 2. The Decisions relating to these Acts are mentioned. 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 adduced, for clearing these Statutes.  
BY SIR GEORGE MACKENZIE of Rosebaugh, His Majesty's Advocate for SCOTLAND.  
EDINBURGH, Printed by the Heir of Andrew Anderson, Printer to His most Sacred Majesty, Anno DOM. 1686.   

TO THE KING.  
SIR,  
NOne are so much obliged to Laws as Monarches, since by them Millions whom corrupt Inclination, and mistaken Interest tempt to shake their Thrones, are yet forced by these to defend them, and find great satisfaction in the reasonableness and gentleness of that kind of force; By those Your Majesty's Predecessors were able to Govern us very long, without any other Arms: And when successful Usurpers got the most victorious Armies in Europe, these Armies were persuaded by Law to serve You and ruin them, though they saw in Your service a dissolution of that Society for which they had with much Courage, but no Justice so often exposed their lives: To prevent which for the future, provident Law settled on Your Majesty, suitable Revenues to defend Your Authority, and therein showed that the safety of the King and Law were inseparably joined.  
It is to our JAMES' that we owe the great Body of our Laws, and so there lies a special obligation upon Your Majesty to cherish them as their Offspring, to maintain them as Your surest and least expensive Guards, and to look on them as the only Counselors that can neither be biased by partiality nor interest.  
But because Your Majesty has a special esteem for Heroes, and Courage; Allow me to represent to you that all those eminent Romans, who conquered the World, were raised by Pleading, and the Command of Armies were rewards bestowed by the suffrages of the People on those who Pleaded best for them; nor did Cesar (as their Story observes) take him to the Camp, but because he loved rather to be first there, than second to Cicero at the Bar, where if he had stayed, he had not destroyed his native Country, which Cicero who continued to Plead, so wisely preserved. That is the most generous heart, which is warmed by Reflection, elevated by the hopes of Fame, and used to Victory; And no Reflections are so strong as those of men always employed in reasoning; Fame has no such Trumpet as Eloquence; nor can Courage give so many and solid Victories as Reason does, and such Courage does the love of Justice inspire in those who adore it, that our Profession has had its own Martyrs too, who dared to die for it, without being diverted by action, from looking fixedly on the terrors of death, or comforted by the hopes of escaping it, as Soldiers in Battles are. The virtuous Papinian is a glorious instance of this, who being chief Minister of State to his Emperor, after he had illustrated the Law by many learned Volumes before he attained to the age of 36. choosed rather to die than justify a barbarous act even in his Prince & Master; This only use of our Reason we want under Your Majesty's happy Reign, you being more unwilling to command what is unjust, than any of Your Subjects would be to suffer. And it was, Sir, the attending Your Royal Brother & You, that heightened thus in me an esteem of Law, for I could not but admi●● that fixed Justice which governed so absolutely two Glorious and Wise Monarches, and made so many thousands happy under them, amongst whom none is more sensible of that general Happiness, and of Your Majesty's special Favours, than,  
May it please Your MAJESTY, Your MAJESTY'S most Dutiful, Loyal, and Obedient Subject and Servant, GEORGE MACKENZIE.   

TO THE READER.  
MY great pleasures are to inform and defend my Country, the one whereof I do without vanity, and the other without humour, equally desirous to have my designs succeed, and careless how they are censured. We have an excellent pattern for a Lawyer in the great Labeo, tit. de Orig. Juris. Labeo plurimum studiis operam dedit: & totum annum ita diviserat ut Romae sex mensibus esset, sex mensibus ●ecederet, & conscribendis libris operam daret. In those Observations I have satisfied the ardent desire our Parliaments have had to have the Laws revised; & I have sincerely endeavoured to preserve honest men from falling into snares by their ignorance, and to instruct my younger Brothers in a Science, by which I wish them to rise, for the service of their Country, and their own advantage; One of the reasons which moved me to undertake this work, was, that even after I was a Lawyer, I found that I understood ●ot our Statutes, though these be the chief Pillars of our Law, and I wished often then such an Interpreter, as now I hope this Book will be. These who have read my Observations upon the Act concerning Bankrupts, will find that I might have been more Voluminous, and seemed more Learned; but my design was to write Notes, and not Commentaries: And this Book, as all others of this kind, should not be judged by any one Page, but by the whole; and yet oft times a Line which may seem easy now, ha● cost me considerable pains, even after I was King's Advocate. The difficult Acts or Questions, which sometime I omit, shall be largely treated in the Papers I shall leave.  
1. It is 〈◊〉 for my 〈…〉 to know, that I 〈…〉 these Acts ●y Skeens Edition, and sometimes by Glendocks, an● so that Act which for instance is the 3d in the one, may be the 4th in the other.  
2. Sometimes I refer my Reader for the Explication of one Act, to the Observations on another, and yet sometimes possibly it is not treated there, which was occasioned by my not having all my Papers together; but the Reader may look the Index of Glendocks Acts, and he will find the Acts omitted treated in one or other of the Acts relating to that Subject: and thus also that Index may serve generally for one to this Book also.  
3. I follow sometimes the ordinary opinion, though possibly it is not my own: Common opinions being still safe even when they are not well founded.  
4. The errors of the Transcriber have occasioned those here corrected, and it ●ere very fit that the ●uyer would cause correct the Book before he read it, for thus by small pains he may prevent considerable mistakes.   

Errata.  
PAgina 1. Linta 4. for Justimans read Justinians. Pa●● 8. Act 11. l. 3. r. 74. ibid. l. ult. for Sunday r. Moonday. P. 14. l. 8, Act 37. for Act 1●. Par. 6. 1. Par. 12. Act 126. P. 25. Act 115. l. 8. r. Esloinʒie. P. 26. l. 9 for Reub. r. Repub. P. 30. Act 137. l. 17. deal (●n) P. 36. insert betwixt the 10 and 11 Acts K. James the 2 d, Par. 6. p. 37. Act 17. l. 8. for revetis r. revives. P. 38. l. 16. r. one helr. P. 46. l. 35. r. person. P. 47. l. 5. for ●s r. as. P. 65. after the end of the 16 Act, add K. James the 3 d. Par. 3. P. 68 Act 31. l. 2. r. get. P. 71. l. 31. r. a 3 d. Comprising. ibid. l. 34. r. 4 th'. ibid. l. 38. r. fi●th. P. 72. l. 3. for prejudged r. perjured, ib. l. 8. r. to more than 5. P. 74. l. 31. r. 3 d Session. P. 83. deal the whole 20 line from ●y etc. P. 87. l. 2● for null r. quarrellable. P. 113. l. 13. Act 74. for of r. under. P. 129. l. 44. for reparation r. repetition. P. 132. l. 2. r. 15●5. P. 134. l. 21. Act 57 r. Judges. P. 136. l. 5▪ Act 70. deal (8) P. 138. l. 5. Act 70. ●. probio●atur. P. ●41. to notwithstanding, etc. Add in the Marg●n Act 82. ibid. for 82. r. 83. ibid. for 83. r. 92. P. 147. l. 4. Act 118. r. appoints. P. 159. l. 7. Act 65. r. l. 1. § 2. ss de legatis 3. P. 170. l. ●. Act 88 for Confirmations r. In●estments. P. 176. l. 28. r. § sed naturalia. P. 185. l. ●. r. Par. 9 P. 186. l. 2. Act 55. r. was first. P. 187 l. 20. for Acts r. and. ibid. l. 21. r. for one only, was only. P. 188. l. 9 Act 66. r. their Rights. P. 193. l. 18. Act 80. r. is probable. P. 226. l. 12. r. quod Clericus in Patrimonialibus ut Laicus tractandus. P. 228. l. 44. r. 189. P. 233. l. 4. for Erections r. Kirk lands. P. 258. l. ●. r. as. P. 263. l. 5. r. Hujusmodi. P. 276. l. 7. Act 156. r. Par. 11. Act 42. ibid. l. 11. r. l. 43. ss. de via pub. P. 278. l. 21. Act 166. r. Par. 3. Ja. 5. P. 298. l. 18. Act 251. r. volentibus. P. 299. Acts 255▪ etc. l. 8. r. 55. P. 300. l. 3. Act 263. for not in observance, r. not put in practice, P. 339. l. 7. Act 2. r. gestabat. Ibid: l. 8. ●. tit. 17. P. 358. l. 17. r. correctoriae. P. 376. l. 8. r. this Act. Ibid: l. 38. for proportion, r. property: P. 377. l. 24. deal and for the property that was Feved out the time of 〈◊〉 Erection. Ibid: l. 29. r. ●nfavourable. P. 379. l. 16. Act 17. for Beneficed person, r. Heretor. P. 396. Act 29. r: 177. P. 399. l. 32: add after prerogative these words, in matters of Trade, and delet all that follows. P. 405. l. 41. r. could not sell. P. 406 l. 19 for first Compriser, r. Debtor. P. 407. l. 42. r. a fir●● Compriser. P. 413. Margin, r. Act 4. P. 415. l. 4. r. l. 1. in ●in. P. 416. l. ●●. deal (as that.) P. 427. l. 30. deal (refuse to.) P. 428. l. 10. Act 5. for satisfied, r. ●ufilfied. P. 4●9. l. 6, for transact, r. tran●m●●. Ibid. l. 2. r. Improving. P. 437. l. 44. r. the half of the Fines of all who are not Heretors. P. 448. l. p●n. deal (not.) Ibid. for short, r. foresaid. P. 462. all from before Act 16. should have been placed before Act 15.   

OBSERVATIONS Upon the STATUTES and ACTS OF K. JAMES I. Parliament I  

IT is observable, 
ACT. 1.  that our Parliaments, do ordinarily begin with Acts in favours of the Church, as Justi 〈…〉 codex Does: and this Statute renews the first Statute, Robert 1. cap: 1. Our History observes, that this Act was made to oblige the Clergy to assist the King against Duke Murdoch; and this is the first of these Acts, upon which the reduction of Erections was founded in anno 1627. It being subsumed there, that though by this Act, all Deeds done to the prejudice of the Church, are declared null; yet these Erections were very prejudicial to it, being in effect alienations of Church-benefices and Lands, in favours of Laics.  
TO make War against the King, is Treason; 
ACT. 2.  and even to make War against private Persons, is punishable conform to the Common Law; that is to say, conform to the Civil Law: for the Civil Law is still called the Common Law in our Statutes, which word we have borrowed from the French, who call the Civil Law (Le droict common;) and by the Common Law, and our present custom, the raising of Men in Warlike manner, by Mustering them, or forming them in Companies, or swearing them to Colours, though no design against the King be proved, is Treason: for to raise War, is a part of His Majesty's Prerogative; and whoever makes War, usurps the Regal Power. The Civil Law, to which this relates, is, l. 3. ad l. Jul. Maj. & l. un. C. Vt armorum usus, inscio principe, interdictus sit: Nulli pr●rsus, nobis insciis atque inconsultis, quorumlibet armorum movendorum copia tribuatur; but the Justices refused to sustain the raising of fewer than an hundred men, to be Treason; or to sustain, that the raising them till after Letters of Fire and Sword, did infer more than a Convocation. Earl of Seaforth contra Assint, Feb. 2. 1674. And Invasions made by one Subject upon another, with numbers of Men without these qualifications, was found only punishable as a Convocation by an Arbitrary punishment, but I consider more the design than the numbers.  

ACT 3.  REbellion, is properly rising in Arms against the Commonwealth, openly and notorly. It was called Perduellion by the Common Law: and that is the species of Treason, that is here punished by forefaulture of Life, Lands and Goods, vid. R. M. l. 4. c. 1. leg. Malcol. 2. c. 12. quon. attach. c. 19  

ACT 4.  THese who refuse to assist the King, to punish notor Rebels, are by this Act punished as favourers of them. Notor Rebels, are only such as are denounced Rebels, or against whom there are Commissions of Fire and Sword granted by the Council, or these who have risen in open Rebellion, though there be yet no legal diligence against them; as was decided February 1680. and these who refuse to assist against such, are punishable as favourers of such Rebels; that is to say, as Art and Part of their Crimes; as is clear by the 29 Act Par. 3. Jac. 4. where favourers of Rebels, are declared punishable, as Art and Part; and consequently, the staying from the King's Host, after open Proclamation, commanding all Heretors to go thereto, is punishable as Treason: and it is clear by the Journal Books, that this Crime has been punished by Forefaulture, Jan. 9 1577. and the 21: of April 1599 Likewise, I find Andrew Naiff in Baldordy, pannalled for Treasonable abiding from the King's Host, at the Raid of Bigger, 1568. And yet I find, that Absents from the Host are Bailed, March 15. 1576. though Treason is not of its own nature Bailable; and that these Pannals, who are doomed to have lost their Estates and Goods, after much debate, are notwithstanding quoad their Persons only warded during the King's pleasure: And His Majesty, by His gracious Letter Nou. 1679: allowed such as were absent from the Host at Bothwel-Bridge, to be only fined at most, in two years valued Rent.  
This Act was also the foundation of all our old Proclamations, whereby all the Heretors, betwixt sixty and sixteen, were charged to come to the King's Host, when our Kings were either engaged against their Enemies at Home or Abroad; at which occasions, Heretors and Liferenters, whether Men or Women, holding immediately of the King, were cited; and they cited and brought out their Vassals: and therefore it was a good defence that they held not of the King, as is to be seen in the Journal Books, Feb: 19: 1600. But now the Council commands all Heretors by Proclamation, to go to the Host, under the command of such Captains as are named in the Proclamation. This Obligation and Statute, is not now taken away by the late Act, giving His Majesty the Militia, as was found by the Privy Council October 1677: and by the Justices in March 1680. so that Heretors must attend either, but not both in the same Countries: so the last Act abrogates not the first, and that being given as a favour, were none, if it took off the first, which is greater, and arises from a feudal obligation, or at least is due to the King as King, and without which the peace of the Country could not be maintained: and by the Act 25: Sess: 3: Par: 1: Car: 2: after the Militia is granted, the Parliament in the same Act, makes a further tender of all their Lives and Fortunes, betwixt sixty and sixteen, when they shall be called for.  
Secundo, It was found that this Crime was not punishable now only by the punishment expressed in Chap: 15: Stat: Alexander 2: whereby a Thane was only punishable in six Cows, and a young Cow: an Ochiern in fifteen Ewes, or six Shillings: and a Labouring Man in one Cow and one Sheep: for that Statute is justly abrogated by this Act that is posterior; the Remedies in that Statute having been probably found ineffectual because of their meanness. This Ochiern is by Skeen called a Freeholder; but I find by many old evidents, that an Ochiern is a Chief of the Branch of a great Family, who has a considerable command; and it is the corruption of the Irish Wochteran, which signifies still in the Highlands, a Master or Superior.  
Tertio, It was found, that though such as were above sixty, or below sixteen, were not obliged to go to the Host themselves, because of the 23. Stat: K. Will: (and this is sustained Feb: 21: 1600:) yet their Age did not excuse them from sending, which clears, why David Lawson was convict for biding from the Raid of Dumfries, in Regent Mortons' time, though he was alleged to be past sixty five.  
Quarto, That such Burgesses as had Lands in the Country, were obliged to send one for these Lands (though it was alleged that Burgesses did not usually keep Horses) except they had been commanded by the Town where they lived, to serve there.  
Quinto, That the Captains under whom they were commanded to go to the Host, could not warrant them to stay at home; because this Feudal obligation could not be dispensed with by Captains, who were only impowered to command: but if they came once out, and were listed; it was found, that the Captains might allow them to return home, upon occasion of sickness, or for other excuses, of which he was a competent Judge.  
Sexto, That the King needed not prove that the Panels came not to the Host, that being a Negative; but that it was necessary for the Panel to prove that he was at the Host.  
Septimo, That the King was not obliged to prove the Panels to be Heretors, but that they were obliged to renunce any heritage they had, in favours of the King, if they denied they were Heretors; even as in other cases, the King is not obliged to prove that any were his Vassals, but they behoved to disclaim, upon their hazard: and of old, the notoriety of their being Heretors, was referred to the Assize, without any further probation, as June 12. 1557. and some times to the Panels oath, as in the case of William Wallace, July 2. 1600,  
Octavo, That not only such as were Heretors by being actually Infeft, were to send to the Host, but that appearand Heirs, and such as possessed the Lands, were to send; it being unreasonable, that the appearand Heir's lying out, and not entering, should prejudge the King more in this case, than it does as to the casuality of Escheat, etc.  
Nono, It was found, that such as possessed by the courtesy of Scotland, were obliged to go to the Host, by an express Decision at this time, though the curiality be but a Liferent, and other Liferenters were not obliged to go, since Heretors in our Law are exponed in opposition to Liferenters.  
These words in this Act, (without a reasonable excuse) seem to insinuate, that not only relevant or legal Defences, but even reasonable or equitable Defences ought to be received, to defend such as stayed from the King's Host: And thus Inquests favour such as were known to be of so infirm a Constitution, as that they could not without great danger to their life, undergo the fatigue of an Army; though they were not labouring under any present formed Disease, or Morbus Sonticus: and for the same reason, mean Heretors were excused, though of old; I find that this was found to be no Defence, in the case of John Ross of Drumgranich, July 2. 1600. but the reason that inclined the Judges in this year 1680. not to fine small Heretors, was, because the Proclamation commanded none to come out, but such as were to come upon Horseback; and so, such only could be fined as could keep Horses: and though the Decisions at this time, did only oblige such as had 100 l: of valued Rent to go; yet by the 120 Act Par: 9: Jac: 1: such as can spend twenty pounds of Land-rent yearly, are obliged to keep a Horse; which by the 267 Act Par: 15: Jac: 6: is to be computed 200 l: of yearly constant Rent.  
I find by the Feudal Law, that the Vassal qui Dominum in bello non adjuvavit, aut periclitantem deseruit, feudum ami●●ebat, Rosenthal. Conclus: 16: num: 1: but yet the words of the Text in the Feudal Law, feudorum lib: 2: tit: 24: Par: 2. are only, Item qui dominum suum cum quo ad praelium iverit, in acie periclitantem dimiserit, beneficio indignum se Judicavit; and yet even by this Text it is employed, that he is obliged to go, and the expressing of that Obligation seems omitted, because it was unnecessar, being employed in the very nature of the Few▪ Cra●g expresses it thus, Alia est etiam feudi, si non an●i●tendi, saltem Vassalli, ob quasi delictum, puniendi ratio, si Dominum, se pro Caesaris expeditione instruentem, non suerit Comitatus, feudum enim eo casu amittet & dimidium fructuum illius anni, ex feudo domino pendet, non enim hic tantum contra dominum, sed contra imperium & Remp: peccatur: so that it seems in his time, the Vassal who h●ld of another Superior then the King, forfaulted his Feu for not going to the Host; but the immediate Superior had Right to half a years Rend; and the reason of this seems to have been, because, by all our old Laws, the Vassal was obliged to attend his immediate Superior in going to the King's Host; and the Proclamation then commanded every man to come with his Vassals; and therefore, as the King had Right to the Forfeiture, for not attending his Host, so the immediate Superior had right to this half years Duty, for his not attending him; and sometimes by the Journal Books it appears, that when Vassals were Fined, and not Forfaulted, the immediate Superior craved the half of the Fine.  
THe punishment of such as ride with more than their ordinary Household, is Arbitrary; 
ACT 5.  and this Act must only be interpret against such as ride ordinarily with great Trains, and which may look like an unpeaceable design; nor is any man punished for riding at solemn Occasions with his Friends and Followers; and I also think, that this Act would only extend to such, against whom there lies a presumption, that they gather, or keep men together, upon some sinistrous design, either against the Government, or their Neighbours; for if this were allowed, great men might keep Troops together; and for this same reason are Convocations discharged by other Acts; and betwixt these Acts and this, there is this difference, that by these, the Convocating for a time irregularly those in whom the Convocater pretends no interest, is discharged; but by this Act, the convening men upon pretext of a Retinue is discharged; and though it may seem, that every man may keep as great a Retinue as he pleases; yet quilibet tantum in suo facere pot●st illud quod fieri potest sine aemulatione vicini, but multo majus sine aemulatione Re●publicae.  
THough by this Law it is only appointed, 
ACT 6.  that there be Officers and Ministers of the Law, made through all the Realm indefinitely, without telling by whom they are to be made; yet by the 2. Act Par. 1. Ch. 2. The power of choosing Judges is declared to be one of His Majesty's Prerogatives.  
It is observable from this Act, that none can be Judges who have not sufficiently of their own, wherethrough they may be punished, if they transgress, which is very just; for a Judge who Decerns unjustly by palpable unjustice litem suam facit; and therefore it may be well argued, that when any who is a Judge, or has an heritable Office, becomes insolvent, he may be forced to find a Depute, who is solvent, or else he may be discharged to sit.  
Obs. Though it may seem, That if any heritable Officer be incapable to exerce; the King should name Deputes jure devoluto; yet by this Act it is ordained, That if the heritable Officer be incapable, he shall ordain others, for whom he shall be answerable.  

ACT 7.  The Design of this Act is to empower the Sheriff to arrest Oppressors and Vagabonds; By these words to sojourn Horse, is meant, to quarter Horse, from the French word sejour; By Husbands of the Land, is still meant Husbandmen in our Acts of Parliament; By taxing the King's Skaith is meant, to cause modify what is due to the King; and by Assything the King is meant, the causing the Malefactors pay what is modified.  
Obs. That the Legislative Words in our Statutes are very various, for in this and many other Statutes of this King, the formula is the Parliament Statutes, and the King forbids, which words show, that the Legislative Power is in the King; for to forbid is the chief and most vigorous part of a Statute.  
In the 17 th' Act it is said, It is Statute, and the King forbids.  
In the 14 th' It is Statute by the whole Parliament, and the King forbids.  
In the 13 th' It is Statute by the whole Parliament, and by the King forbidden.  
In the 30 Act 2 Par. Jac. 1. It is Decreeted by the whole Parliament.  
In the Act 37 It is Decreeted and Statute.  
In the Act 47 Par. 3 d. It is ordained by the King and Parliament.  
Act 50. It is ordained and forbidden.  
Act 60 Par. 3. Jac. 1 Our Sovereign Lord through the whole Ordinance of the Parliament Statutes.  
Act 125 Par: 9 Jac: 1: Through the consent of the whole Parliament, it is ordained.  
Act 62 Par: 3 Jac: 1. It is seen speedful.  
Act 76 Par: 5 Jac: 1. It is Statute and Ordained, and Act 78 and 79: It is Ordained.  
Act 83 Par: 6 Jac: 1. Rex per modum statuti ordinavit.  
Act 85 Rex mandavit.  
In the old Statutes of King Robert and King Alexander etc. It is said, Dominus Rex vult, or statuit Rex, or desinivit Rex, or prohibet Rex, or decrevit & deliberavit Rex, without speaking one word of the Parliament or Estates.  
Act 105 Par: 7 Jac: 1. The King with the consent of the Council.  
Act 104. The King with the consent of the Parliament and Council.  
Act 108. The King of deliverance of Council.  
But the formula now is, Our Sovereign Lord with advice and consent; or, Our Sovereign Lord and Estates of Parliament; which last is not so proper, and though in most of the Acts of the 14 th' Parliament K. Ja. 3 d, It be said, That it is, Statute and Ordained by the whole three Estates, yet it may be easily seen, that these Acts were but in effect Overtures proposed by the three Estates, to be Ratified in Parliament; and so in effect are conceived rather as Overtures than Acts: As also, where any thing is to be put in execution by the King, there the Act runs in name of the Parliament, and not of the King, as in the 23 d Act Par. 1 Jac: 1. It is said, that the Parliament has Determined and Ordained, that Our Lord the King gar●mend his Money; and in the 6 Act Par: 3: Jac: 2. The three Estates has concluded, that Our Sovereign Lord Ride throw all the Realm, etc.  
THere are many ways whereby the Superior may crave Production of his Vassals Evid●nts: 
ACT 9·  for the King sometimes gets an Act of Parliament ordaining all the Vassals of such a Country to produce their Evidents, as 262. Act. Parl. 15▪ Jac. 6. whereby all the Heritors in the Highlands are ordained to produce their Evidents, with certification of losing their Rights. The Superior may also crave exhibition of these Rights; But the ordina● way is by an Improbation, wherein certification is granted against the Papers that are not produced; which is derived to us also from the Feudalists, who affirm, that Vassallus imperari potest sub poena caducitatis, comminatione legali, & certus terminus statui, si ●●tra eum instrumenta non edat. This Commination is our Certification, and this Terminus, is our Term in Improbations. Rosenthal. cap. 8. concl. 33. num. 13. and 14. In these Actions the King needs produce nothing to prove that he is Superior, for the King is presumed to be general Superior, and is Infeft Jure Coronae, in all the Lands of Scotla●d; but though other Superiors must produce a Seizing of the Lands, yet they need produce nothing to prove that the Defender is Vassal who is obliged to produce upon his hazard, or else to disclaim; and yet if the Superior, Libel only that he is Infeft in such an Earldom, and that the Defenders Lands are part and pertinent of the Earldom, without producing any thing to instruct that he stands expressly Infeft in these Lands, as a part of his Earldom; the Lords would not put the Defender in that case to produce Simpliciter, but allowed the same day to the Pursuer to prove that they were Part and Pertinent of the Lands wherein the Pursuer stands Infeft, and to the Defender to produce, if that were proved; for the Lords thought it hard, to force Heretors to propale and lay open the secrets of their Coveyances, where it was not certain, if the Pursuer had any Interest, albeit it was alleged, that this would occasion two Liti●-contestations in one Cause. (viz.) One, whither the Pursuer had Right, and another, whether the Defender had sufficient Interest to seclude the Pursuit; for the Lords thought, that this being an Act before answer, did solve this difficulty; and the ordinar Maxim, that the Vassal must disclaim upon his hazard, and the Argument, that either the Pursuer was Superior, and would be found to be so, and then there was no wrong done, or else he was not, and in that case the Defender was in no danger by disclaiming, were both found only to take place, where the Pursuer produced a special Right to the Lands Libelled, but not where he pretended only, that the Land possessed by the Vassal was part and pertinent of his Land, which any Pursuer might allege.  
The third, and old way of forcing the Vassal to exhibit his Evidents, was by a Feudal Trial, per pares curiae, that is to say, before an Inquest; for of old, the King summoned his Vassals to appear before an Inquest, to bring with them any Right they pretended to such or such Lands; and that way is expressed in this Act, as well as the other; and in Statut. 36. Rob. 3. num. 3. but is now in Desuetude, The Lords of Session being come in place of the Inquest. The Earl of Rothes as Donator to the Ward of the Countess of Bu●cleugh, having pursued the Tutors for inspection of the Charter-Chist, that he might know what Lands held Ward; The Lords ordained one of their own number to take inspection, and to show to the Donator what Papers could prove the Ward-holding, because it is presumed that all Lands hold Ward, Decem. 20. 1661.  

ACT. 10.  FRom this, and the subsequent Acts: It's observable, that the Parliament may, without citing parties, discharge privileges contained in private men's Rights, though they cannot without citation cas●e and annul private Rights.  

ACT. 11.  FOR understanding this Act, It is fit to know that the distance betwixt the Hecks of Cruius should be 3. inches wide, which is renewed by the 74. Act Parl. 10. Jac. 3. and should not be 5. inches conform to the 15. Act. Parl. 2. Jac. 4. which the Lords found 29 July 1665. to be ane error in the Printing. They there also found that the Mid-stream was in Desuetude, notwithstanding that it was revived in all these Statutes; but that the Saturndays Slop was to be observed in all Cruius, which was to continue by pulling up all the Hecks to the breadth of an ell in every Cruive, from Saturnday at six a clock till Sunday at Sunrising.  

ACT. 12.  THough Mines of Gold and Silver, be by this Act declared to belong to the King, yet by the 27 Act. Parl. 4. Sess. 2. Car. 1. they were declared to belong to the Heretor, he paying to the King the tenth Penny, which was the Canon Metallious, that was only due out of Mines found in private Fields, l. 2. C. de Metal. But that Act is rescinded in the general Act Rescissory, and this Act is conform to the Feudal Law, Feud. lib. 2. tit. quae sunt Regalia 56. It has been doubted, whether Led, Copper or Tin belong to the King, or the Heretor; but the King is in possession of disponing upon these also; and when He dispones them in a novo damus, even to the Heretor, He reserves a tenth part to be paid in to His Exchequer: and His Majesty has granted general Gifts of all Coppermines: and Craig tells us, lib. 1. dieg. 14. that omnium gentium, omniumque aetatum consensu, ●odin●s omnes auri, argenti, stanni, aris, & similium, in patrimonio principis numerari; but yet they are not enumerate in the foresaid Text of the Feudal Law, otherwise, than by being comprehended under the word argentaria; & frequens est in jure, sub majoribus minora comprehendi; and yet I think, that if His Majesty disponed Land with all the Silver-Mines, this would not comprehend Copper, Tin, etc. So that this Rule holds not in all Cases; nor doth it hold in any Case, where things require special Dispositions, as omnia regalia do;  
Nota, From this Act to the 23. the Acts are either in desuetude of no import, or explained in the Observations upon other Acts.  
BY this Act, it is ordained, that our Coin be of the weight and fynness of England, 
ACT. 23.  which was formerly ordained by the Ch. 38. Stat. Dau. 2. and though by the 17. Act. Parl. 1. Ja. 6. It is declared, that Our Sovereign Lord cause Print and Conyie Gold, and Silver of sick fynness as other Countries do; yet after King James succeeded to the Crown of England, He passed a Contract betwixt the Mints of both Nations, wherein they oblige themselves to keep the same Standart; and though the denominations be different now, yet the Standart is now the same; For the English Denomination is 11. unces, 2. deniers fine, which is called Sterling fine, ours is 11. deniers and 2. grain; and albeit upon a very subtle inquiry, It is alleged that the Denominations cannot be adjusted, without some difference, yet it is so small a fraction as is not to be regarded; and there are four indented Pieces, two of Gold, and two of Silver made of the same fynness, and out of the same Essay-pot▪ two whereof are sent to Scotland, the one of which is kept by the Thesaurer, and the other in the Mint; and two are retained in England, the Denominations are Printed upon these Pieces; and in the Lord Hattons case, it was found that this common Standart was to be the Rule. Vid. Observation on the 249. Act 15. Parl. Ja. 6.  
The last Act of this first Parliament in the Black Impression, is an Inhibition made by King James the First to the Bishop of St. Andrews, delegated by the Pope, to proceed upon the Dismembration of a Benefice purchased at Rome.  
Nota, There are many Acts omitted out of Skeens Impression which were in that Impression, because Skeen judged them Temporary, as this Act and a Taxation imposed for the King's Ransom by this Parliament, wherein so much was put not only upon every Boll of Victual, but upon every Beast of cattle. Some Acts are also to be found in Skeen, which are not in that Black Impression, as the 80. Act. Parl. 10. Ja. 3. (in the old Impression it is Act 79.) concerning Purprision; As also, some Acts which were there only temporary, are made by Skeen constant and perpetual Laws, as the 29. Act of the 2. Parl. of this King ●uns thus in Skeen, It is statute and ordained that the breakers of the Acts of Parliament be punished after the form and ordinance thereof; whereas that Act runs thus in the Black Impression, Item, that it be enquired by the King's Ministers give the Statutes made in his first Parliament be kept, and if they be broken in any of their punctilios, that the breakers of them be punished after the form and ordinance of the said Parliament.  
The Rubrics also of the Acts of that Black Impression differ almost every where, and very much from this Impression, which proves that Argumentum à rubro ad nigrum, is of no great weight with us, the Rubric being an Inscription made by the Clerk Register, and no part of the Act of Parliament.   

King JAMES the First, Parl. 2,  
IN the Inscription of this Parliament it is said, and of his Kinrick the 19 year, by which word Kinrick is meant his Reign; for Kinrick in the Saxon Tongue signifies Reign, and sometime Kinrick signifies Kingdom with us, as in the 145. Act, Parl. 13. Ja. 1.  
In the Inscription of this Parliament according to the Black Impression, it is said, that to the three Estates of the Realm there gatherit were proponed sundry Articles, to which was answered in manner as after-follows, by the Inscription of the first Parliament, according to that Impression it is said, Electae fuerunt certae personae ad Articulos datos per Dominum Regem determinandos data caeteris licentia recedendi: By which it appears that the Lords of Articles being named, the Parliament Adjourned; and the custom was, that they never met again till the last day of the Parliament, when the resolution of the Articles was voted. 2. The resolution of the Articles is said to be Per Dominum Regem, because he is only Lawgiver, and the Parliament only consents.  
It is said in the Inscription of the third Parliament, that these Articles were put to certain persons chosen by the three Estates, which insinuats that the Lords of Articles were chosen by the three Estates, whereas now the way of choosing the Articles is prescribed by the 1. Act, 1. Parl: Sess: 3: Changed 2.  

ACT 26.  BY this Act it is ordained, that if any Lands or Possessions of Haly Kirk be wrongously annalyed, they should be restored by Process of Law.  
For understanding whereof, It is fit to know, that Regularly, the Lands and Goods of the Church, are not Annaliable; and Churchmen are not Proprieters of them, but Administrators, and Li●renters, praecarij possessores, quibus tanquam commendatis, non tanquam proprijs uti debent. Salu. lib. 1. And this is clear by the Canon Law, Canon sine exceptione. 12. Quest. 2. & can. ult. Quest. 1. and the Civil Law, l. Jubemus, 14. C. de sacrosanctis Ecclesijs; But yet there are three cases excepted, in which it is permitted to alienat them expressed in Gloss. causae, 12. Quest. 2. viz. 1. In causa necessitatis, if the Church's Debts require the same, as for maintainig its Fabric, or to maintain the Christian Religion against Infidels or Heretics. 2 do. Causa pietatis, as to maintain the Poor, when starving, or to redeem Prisoners from Infidels. 3 tio. Causa damni vitandi, when the Lands are not otherwise improvable; for which last there is an Act in the Lateran Council under Alexander the 3 d. Cap. ad aures Extr. de Reb. Eccles▪ non alienand.  
By our Law, all Ecclesiastical Persons are discharged to lessen the Rental of their Benefices, by setting Feves, Tacks, conversion of Victual for Money, or any other Disposition. By the 5 th' Act. Parl. 22. Jac. 6. Bishops are discharged to set in Tacks their Quots and Casualties, and though this last Act seems unnecessary, because of the former, yet it was made, lest it might have been debaitable whether Casualties fell under the former Prohibition, since Tutors may transact for these, as we see in Francies Montgomeries case, against the Earl of Liven, where it was found, that Tutors, who cannot alienat, may transact for Casualties, as to give a Liferent to the Husband of the Heretrix, in place of the Courtesy, and though Prelates, aswel as Barons, were allowed to Feu their Ward Lands, for the better improvement of them, Act. 71. I. c. 2. Parl. 14. Act. 91. Jac. 4. Parl. 6. Yet these Acts are only to be understood of Lands to be Feued out for the equivalent Rent, when at first they were Barren, but they are no warrant to Bishops to Tax their Wards for a certain Duty, for this is contrary to the Interest of the Church, and is so far from being warranted by any Law, that there is an express Act. (viz.) 9 Parl 23. Ja. 6. allowing them only to few out their Ward Lands by a Temporary Statute, to endure for three years allanerly; which shows that Regularly it was not lawful, and this did prejudge the King also, who might have right to the Ward, and Marriage, seed vacant, from which he would be debarred by Taxing these Casualties: And therefore Sharp Archbishop of St. Andrews having Taxed the Ward-holdings of the Lands of Blebo, that Right was reduced by his Successor, 12. March 1684, Though it was alleged, that though Churchmen cannot alienat Teynds, which are the Spiritualities of the Church, yet they are domini, and not administratores tantum, as to the Temporality, which was said to be also craig's opinion; and Taxing was a more constant Rent to the Church, and as a Bishop might Gift a Ward which could not be quarrelled by his Successors, even for years after his Death, or Removal, so might he Tax.  
Nota, Though by the 41. Act, Parl. 10▪ Ja. 2. The King may resume the annexed Property unlawfully Disponed, but any Process of Law, yet in this Act Kirk-men are not to resume the Lands wrongfully annalȝied by them, otherways than by lawful Process of Law.  
BY this Act Hospitals founded by the King, are to be visited by the Chancellor, but Hospitals founded by Bishops, 
ACT 27.  or other Subjects, are to be visited by the Bishop, and ordinary; which Act is renewed by the 63. Act, Parl. 5. Ja. 6. But by the 101. Act, Parl. 7. Jam 5. all the Visiters are to be appointed by the King, and by our present Practice. All Actions intented for causing Patrons, or others, Compt for their Intromissions with the Rents of Hospitals, are still intented at the instance of the Chancellor. By the Canon Law, Curis Hospitalitatis, & Hospitalium ad Episcopi solicitudinem pertinet, sed ubi non aedificantur Hospitalia cum permissione Episcopi locus non est sacer, nec est sub Episcopi cura.  

ACT 28.  Heretics are by this Act to be punished as Law of hali● Kirk requires, id est, by Excommunication, with us they were burnt; and by Act 46. Parl. 3. Jam. 6. Churchmen who are Heretics are to be Excommunicated, and Deposed, if they revock not their Heresy; the punishment by the Common Law is Burning, and Confiscation of Movables, Clar. Num. 13. This Act was made against the first of our Reformers, called then Lollards, for the Rubric in the Black Impression bears of Heretics and Lollards.  
Obser. From this Act it is observable, that the Kirk was Judge to Heresy, in prima instantia; and Clarus makes the Trial so far Ecclesiastic, that the Cognition belongs to the Church, and the punishment to the secular Judge, but with us the Justices are Judges in prima instantia.  
IT may be alleged from this Act, that all Transgressions of Law are not punishable as contempt of Authority, 
ACT 29.  where there is no express sanction in the Law, since by this Act it is appointed that the Breakers of Acts of Parliament are to be punished after the Form and Ordinance thereof; By which words also it seems, that all Acts of Parliament are with us stricti juris, and not to be extended de casu in casum; but yet with us Laws are extended by Parity of Reason, and by Analogy, as in the case of making Men answerable for their Wives not going to Church, etc. And the meaning of this Act is, that Judges shall not have liberty, commutare paenam Lege definitam express, for the best Lawyers acknowledge, that though an Statute should say, And it is ordained that this Statute shall be understood exactly according to the Letter, yet it is capable of even an extensive Interpretation, if no unjustice follow on that extension, but much more if without this it would be unjust. Bald. de stat. num. 3. Voet. de statut sect. 7. cap. 1. And a declaratory Interpretation is by all Lawyers acknowledged to be a Literal Interpretation, Voet. ibid., albeit in general it cannot be denied, that these who have power to make Statutes, must by a necessary consequence have power to modify and qualfie them as they please; and as they may allow inferior Judges a Power to Interpret Statutes in general, so they may discharge them in a particular Statute to use that their Power, and in that Case an inferior Judge cannot Extend or Interpret otherways than in the terms foresaid.  

ACT 30.  League's and Bonds are by this Act only declared null, but by the Act. 12 Parl. 10. Jam. 6. and Act 4. Parl. 1. Changed 2. they are declared punishable as Sedition, and were punishable by Warding, Act 43. Parl. 6. Q. Marry.  
IF any carry Horses under three Years old, 
ACT. 31.  to be sold out of the Country, they E●cheat them by this Act, and by the 22 Act Parl. 1. Jam. 6 If Horse (without making difference as to their Age) be carried beyond Sea, the Horse and Ship and Goods of the Owner are Escheated, and their Persons to be punished arbitrarly. It is declared by that Act, that there were several Acts before discharging the exportation of Horses, whereas I see none save this, and therefore these behoved to have been Acts of Council, or unprinted Acts of Parliament, though generally all Acts inferring Escheat should be printed for Certioration. These Acts are now in Desuetude, carrying Horses out of the Country being an Improvement of Rent, though that was then discharged upon the account of our Wars with England; but it would appear that the carrying Horses out of the Kingdom till they be three Years old, was not discharged upon the account of War, but to the end the Horses should be kept till they gave a greater price, and so should bring in more Money; therefore this Prohibition it seems should still last.  
BY this Act, Tallow transported is escheated, 
ACT. 32.  and the reason hereof is given by the 123. Act. Parl. 7. Ja. 5. because by the transportation thereof it became very dear at home, and therefore the escheat of the transporters whole Movables is added, but the ill Increasing the Movables of the Masters, and Skippers of such Vessels in which it is transported, are declared to fall under Confiscation, Act. 40. Parl. 6. Q. M. And this Act extends the former to Strangers  
It is Observable, that though this Act discharged all Persons to export, yet all other Acts mentions Strangers, when it is designed that the Prohibition shall be extended to them, as is also clear by the Act. 22. Parl 1▪ Ja. 6. and the 31. Act. Parl. 7. Ja. 2 d. So that it may be doubted if such penal Acts should be extended to Strangers where they are not mentioned▪ and if the words, (all Persons) are not in our Acts to be restricted to Natives.  
Though by the Civil Law the owners be liable for the Skippers fault, in so far as concerns the prejudice done in the Ship; yet it seems hard, that an owner's escheat shall fall for the Skippers taking in Tallow, else Rich men would not be Owners, and Skippers might Maliciously ruin their Owners, and therefore it seems that by Masters here should only be meant Skippers, and by the Civil Law, the Skipper was called Magister Navis.  
THough this Act punishes only Stealers, 
ACT. 33.  or Cutters of Green Wood in the night time, yet they are punishable for such Faults at all times, the punishment is expressed, Act. 84. Parl. 6. Ja. 6. but thereafter cutting of Green Wood is punished as Thift with Death, Act. 82. Parl. 11. Ja. 6. and yet I find none ever punished Capitaly for this Crime, and the ordinary way of pursuing, is, by Process before the Sheriffs, or the Lords, for pecuniary mulcts.  

ACT 34.  BY the Common Law no Judge can cite a Malefactor without his own Territory, and therefore, if a man cut my Trees, I could only pursue him within my Jurisdiction ratione criminis commissi, if I find him within it; but yet he●e it is enacted, that if a man steal my Wood, the same shall be punished in the Court within which t●e Lands lie, out of which the Wood was stolen, and none other; but it seems that this being only introduced in favours of the Person injured, he may renunce it, and pursue before the Judge of the Jurisdiction, in which the Offender dwells, who cannot obtrude this Statute.  

ACT 35.  FOr clearing this Act, Vid. infra Ja 1.9. Parl. Act 131.  

ACT 36.  BY this Act, Stalkers of Deer are to pay 40 shilling to the King, and their Resetters ten pounds; N●ta, Reset in some cases, and in this, is more severely punished than the Malefactors. The pain is augmented to a 100 lib. Act. 210. Parl. 14 Ja. 6. And at last shooting them with Guns is declared punishable by death, Act. 9 Parl 4. and Act. 51. Parl. 6. Q. M.  

ACT 37.  BY this Act▪ These who wilfully Reset, Maintain, or do favours to open and manifest Rebels are punishable by Forfalture.  
For understanding whereof, it is fit to know, that there are some manifest Rebels de jure, and some de facto. Such as are denunced and registrated, are manifest Rebels de jure; for though the lieges know them not, yet they ought to know them, and it would seem that this requires a Denunciation within the Shire where the Resetter lives, Act▪ ●2▪ Par●▪ 6▪ Ja. 6▪ And though that Act bear, that the Denunciation at the head Burgh of the Shire be sufficient, yet it seems that the Denunciation being only a transient Act, is not sufficient to put the lieges in mala fide, except the Rebel be Registrated as Registration of other Letters is necessary to put buyers in mala fide: Such likewise, as are by positive Act of Parliament declared to have been Forfaulted, (as these expressed in the Act. 11. Pa●l. 2 d. Ch. 2 d Sess. 1. are likewise manifest Rebels de jure, since all are obliged to know what is in Acts of Parliament; but it has been doubted, whether the resetting even of these after they have been allowed for many years, to appear publicly in Kirk and Mercat, to the knowledge of the King's Servants should infer paenam ordinariam; or whether the said paena ordinaria can be inferred, by resetting such as are mentioned in a Proclamation.  
These are manifest Rebels de facto, whom the Panel knew to be Rebels, or Traitors, though they we●e not Denunced; and thus Hamilton of Munkland was Forfaulted for resetting his own man, whom he had seen in the Rebellion; and if a man did see one kill the King, or should assist Rebels in Arms, before they were defeated, it were ridiculous to allege that this were not punishable as reset, because the Rebels were not denunced Rebels, since they could not be denunced before Citation, and the danger in resetting actual open Rebels is greater than in resetting poor lurking Vagabonds; but this kind of accession must be inferred only from clear qualifications of knowledge, such as these whereupon Lawrie of Blackwood was Forfaulted Winter Session 1682. In which Process it was likewise found, that Letters of Intercommoning were not necessary to infer nottor Rebellion, because Denunciations for Treason includs Intercommoning ex sua natura; it being hard to leave so dangerous certifications to be arbitrarly inferred from conjectures; and the Acts of Parliament require very wisely, that the Rebellion be wilful; These who are here called Manifest, and open Rebels, are by the 4 th' Act. Parl. 1 Ja. 1. called Not●or Rebels, and notorium, by the common Law, is that which is committed Palam &. inspectante populo & non ege● probatione Mattheus de prebat. cap. 15. Clar. § Fin. Quest. 9 which is to be understood of that which is in se notorium, but there may be notorium respectu noscentis without this, as in Munklands case.  
By the 97. Act. Parl. 7. Ja. 5. Such as reset any Rebels are punishable by Death, and Confiscation of Movables; but it seems strange, that resetting Rebels for a Civil Debt should infer Death, or that resetting Traitors should infer no more; and therefore the 144 Act. Parl. 12. Ja. 6. is more just, ordaining the resetters of Rebels to be punished with the same pain, that the Rebels ought to have been punished with; By this Act also, all men are bound to search, take and apprehend them, or to certify the K●ng and Council of their lurking in their bounds, sub paena talionis.  
By the 29 statut. David 2 d. The Resetter is not to be punished till the principal Malefactor be convict, but this was Repelled in Blackwoods' case, because he had reset persons that were de facto, nottor Rebels; and certainly if a man should reset a company of nottor Rebels, who could not be Convict, because they could not be personally and distinctly known, yet the Resetter might be Convict.  
IS in Desuetude. 
ACT 38.   
THough this Act appoints Deacons to be, 
ACT 39  yet all Deacons are discharged, Act 86 Par. 6 Jac: 1. and Wardens ●re appointed in their place. Act 103 Par: 7: Jac: 1. and thereafter Visitors are brought in. Act 52 Par. 6 Q Mary, But now Deacons are restored to all incorporate Trades; But Maltmen are discharged to have Deacons by Act 29 Par● 2 Jac: 6. And yet if a Trade be not in Possession of a Deaconry, they cannot begin to choose Deacons, without first obtaining liberty from the Council for that effect, by Petition; so far still is the public Peace of the Nation thought concerned in all Deaconries, and in a Process at the instance of the Tradesmen of Brunt-Island against their Magistrates, concluding that they ought to have Deacons, because their Charter gave them as great Privileges as Edinburgh had. The Lords found that this Charter gave the Trades a Liberty to have Deacons, but did not oblige them to have them; and therefore they having lived so long without Deacons, and the Trads men being so few, they were not obliged to have Deacons. In Spain and France, such Colleges are discharged, vide Perez: ad tit. 16: lib: 11: num: 19: Habere tamen possunt Decanum suum ibid. vide infra Act 86. p: 6: Jac: 4.  

ACT 40.  IS much innovated by the Book of Rates.  

ACT 41.  IS in Desuetude.  

ACT 42.  Beggar's (or Thigsters who are gentle Beggars) should have a Token from the Sheriff, or Magistrates of burgh's, else they are to be burnt in the Cheek, this Act Ratifies only the 25 th' Act Par: 1 Jac: 1. and adds to it, that the Chamberlain shall inquire in his Air concerning this, but all this is Regulated by the 18 th' Act Par. 2 d Sess: 3 Ch. 2.  

ACT 43.  THis Act is extended to Hearers of such Leasing-making, Act 134. Par. 8. Jac. 6. by this Act Leasing makers lose Life and Goods, and this Act is made to determine the uncertainty of the cap: 21. stat. Rob. 1. whereby the inventors of Rumours betwixt King and People, were put in the Kings will. I find an Act in England against ●he same Crime, vid: 3: Hen: 8: c●p: 10: annot 1637.  

ACT 45.  NOta, That though the Legislative Power belongs properly to the King in the Parliament, yet the Judicative Power belongs properly to other Courts; and therefore by this Act, private Causes are appointed to be discused before inferior Courts, and the Parliament should not be Judges in the first instance, But de facto, many private cases are intended before them.  

ACT 46.  THough by this Act it be ordained that honest men be appointed to modify Assythments; yet this modification now belongs to the Exchequer, who modify the Assythment, when the Signature for the Re-in-mission passes in the Exchequer.   

King JAMES the first, Parl, 3.  

ACT 47.  IS in Desuetude.  

ACT 48.  THis Act was made to exclude all pretensions of the Emperor or Pope, and all Laws made, or Privileges granted by them, but was not designed to exclude the Civil and Canon Laws, which by many of our Statutes are called the Common Law, and are followed in this Kingdom, and to exclude the Danish Laws in the Isles, Jac. 4 Par. 6 c. 79.  

ACT 49.  THis Act against Transporting of Money, is after many Innovations severely renewed, and the Merchants ordained to swear thereupon, allowing only sixty Pounds to Passengers for their Charges, by the 11 Act Par: 1. Sess: 3 d Ch: 2 d. But many think it more reasonable to allow Exportation as in Holland, since the hindering Exportation prejudges much all manner of commerce.  
THe first part of the Act discharging Officers in the Country, 
ACT 50.  wherein any man is endited to be upon his Assize, seems to be founded upon the suspicion that arises from an Interest they may have, in having the Panel Convict, since a part of his Escheat belongs to them; and therefore I think this should not be extended to exclude any such Officers within the Shire, as may expect no share, such as Commissars, etc. The second part of the Act which discharges those who endite a man to be upon his Assyze, extends also against Informers, and these who gave advice for raising the Libel; but from this part of the Act it clearly appears, that it is not generally true, that when a penalty is adjected to an Act, the deed is not null, though the penalty be due, for it is here forbidden, that any Officiar, or other who Indyts a man, shall be on his Assyze, under the penalty of ten pounds: and yet certainly this Act would set the informer from being on the Assyze; and though to this it may be answered, that this is unlawful by the Law of Nations, prior to all Law, and so this Law is only declaratory; yet that cannot be alleged as to discharging Officers within the Shire, to be upon assyzes, it may be also alleged, that this Penalty is only irrogated, in case any should pass on such Assyzes, without being known to be such. But I do really believe, that we in our Parliaments considered not the subtle distinction betwixt Acts, which proceed paenam irrogando, and these which proceed actum irritando vide Obs: on the the 216 Act Par: 14 Jac: 6.  
It may be likewise concluded from this Act, that the King's Advocate is obliged to condescend who is his informer, for else the Informer may be upon the Panels Assyze; and yet because that would discourage men from informing, & interest Reipublicae ne crimina maneant impunita; Therefore the Council has several times found, that the Advocate is not obliged to condescend upon his Informer, further than that, if it be referred to the Advocats oath of Calumny, that some of the Assyzers, or Witnesses were his Informers, as to which he will be obliged to give his Oath of Calumny.  
THe difference betwixt Forethought-fellony and Chaudmella, 
ACT 51.  is only observed as to Murder, though this Act seems to extend it to all Transgressions, and even as to murder the Murderer is to be imprisoned, whether it be committed upon Forethought-fellony, or Chaudmella, for Chaudmella or homicidium in rixa commissum, is Capital by our present Law.  
THis Act appointing all Barons to appear in Parliament, 
ACT 52.  may seem abrogated by the 102 Act Par: 7 Jac: 1. Whereby the Barons of each Shire, are allowed to choose two wise Men to Re-present them, which is the Custom at this day: But it is observable, that though by that Act they may for their conveniency, choose two; yet they are by no express Law discharged to come in greater numbers.  
Nota, It seems by that Act, that a Prelate or Earl may send their Procurator to Vote for them, if they have themselves a lawful excuse; but yet the praxi, that is not allowed; but this Act is more fully Explained in the Observations on the 7 Act Par: 22 Jac: 6.  

ACT 54.  OBserve that this Act proves the Books of Regiam Majestatem, and Quoniam Attachiamenta, to be our Law, for they are called the Books of Law.  

ACT 57 and 58.  ARe Explained in the 96 th' Act Par: 6 Jac: 4.  

ACT 59  THis Act appointing all Ferriers to have Bridges in places where Horses are to be Ferried, is renewed by the 20 Act Par: 4 Jac: 3. Wherein all passages on each side of the Water are ordained to have Bridges, whereupon Brunt-Island and Kinghorn raised a Process against Kirkaldy, to have their Passage-Boats discharged, as not being able to have such Bridges, and for the good of the Kingdom, since if all places were allowed to have Boats, Kinghorn and Brunt-Island (which in the old Evidents is called Wester Kinghorn) could not have sufficient Boats against Storms as now, but this being thought by the Council, matter of Property was remitted to the Session, it being dangerous upon pretext of public good, to discharge Property, for else many Innovations might be pretended.  

ACT 65.  BEfore this Act the King's Council were the Supreme Judges in civil Causes; but by this Act some Commissioners of Parliament are to be chosen by turns, who with the Chancellor, are to be the Session, and are to be paid out of the Unlaws; so that the Session was then a Committee of Parliament, their power is further settled and declared by the Acts 61, 62, 63, Parl: 14 Jam: 2 d. By which it is clear, that they were to Sat but forty days at a time, and that the Session was then ambulatory, and their sitting was Proclaimed in each Shire where they were to Sat, three Months before; and they were by that 63 Act to bear their own Expenses, after which the Sessions were by K James 4 Par. 6 Act 58. turned in a daily Council, which was to be chosen by the King, and was to Sat at Edinburgh continually, and wherever the King Resided, they had the same power that the Session had, and their Sitting was to be notified to the People by open Proclamation at the King's pleasure; In place of all which, The College of Justice, and The Lords, as they now are, were Instituted by King James 5 th' Parl. 5 th' Act 36.  
Nota, There is power granted by this Act to determine Causes finally, which may import an excluding of Appeals, but thereafter Appeals are discharged expressly, Jac. 2 Par. 13 Act 62.  
THe Sheriff; are not now obliged to publish the Acts of Parliament, 
ACT 67.  but they are to be published at the Mercat Cross of Edinburgh only, and bind not the lieges till forty days after Publication, K. James 6 Par. 7 Act 128.   

King JAMES the first, Parliament 4.  
ARe Explained in the 96 th' Act 6 Par: Jac: 4. 
ACTS 68, 69.   
BY this Act, wilful Fire-raising is Treason. 
ACT 75.  2. Fire-raising by Mis-governance is punishable in Servants. 3. Reckless Fire-raising is punishable, either in the Owner, or the Mealer, or Tennent. By the Civil Law, incendium casu fortuito is not punishable, but conductor tenetur de levissima culpa & incendium praesumitur culpa inhabitantium factum fuisse si intra domum originem habuerit & ●o casu pater familias tenetur ex facto & delicto familiae sed non tenetur si ortum habuerit incendium extra familiam vide Gail. lib: 2 Obser: 21, & 22.  
Though by this Act, the Magistrates of Towns are to inquire concerning the skaith suffered by Fire-raising, so that this seems to be a matter of Government, and consequently proper to be tried also by the Privy Council; yet where the case is intricat in point of Law, the Council uses to remit the same to the Session, as in Doctor Sibbalds' case, April 1684.   

King JAMES the first, Parliament 5.  
FOr Explication of this Act Vid: sup: Act 39 Par: 3 Ja: 1. and Act 86 Par: 6 Ja: 1. 
ACT 77.   
THis Combination of Workmen was also punished by the Civil Law, and it was found in the case of the Lord Hattoun, 
ACT 80.  against the Deacon of the Masons of Edinburgh, that a Man might choose any Stranger Mason to build his House, and if any Mason within the Town give over the Work, any other Mason within the Town might undertake it, notwithstanding of their own private Statute.   

King JAMES the first, Parliament 6.  

ACT 85.  THe Act here related to, is 24 th' Act Par: 1: Jac: 1.  

ACT 86.  DEacons are discharged by this Act, as tending to Sedition; and in place of them, the King did introduce Wardens of Crafts, who were to Supervise the Work of the respective Tradesmen, and were indeed Deacons, but were called Wardens, quasi Guardians, Act 102. par. 7. Jac. 1. But thereafter, though Q: Marry of new suppressed Deacons, and introduced in place of them Visiters; yet thereafter, about the time of the Reformation, to strengthen the Popish party, and to oblige all Tradesmen thereto, she restored Deacons by a special Gift, and a Letter to the Council of Edinburgh, since which time, they remain still legal Corporations, and each private Trade has their Deaconry, Confirmed by Parliament Vid. Act 39 Par. 3 Ja. 1.  

ACT 87.  THis Act Regulating the Expenses of unjust Pleas, seems to have been first made in a Provincial Synod, for it relates to the Official, or Commissary Court, and ends thus, Et quod istud statuatur de authoritate Concilij provincialis. But I find that in Voet. de stat. that general Laws are called jura provincialia.  

ACT 88  THough all Submissions with the Decreets following thereupon, be declared null, if the Submission be not made to an odd person; yet this is now in Desuetude, vide R. M. l. 2. c. 5. num. 4, 5, which says, that it is ordinary to submit to two, though it be difficult to make them agree; and therefore the Law recommends to them, to submit to an Odd Man.  

ACT 89.  THis Act relates only to Processes, for by it the Causes of all Merchants dying abroad, should be decided by their ordinary Judges within the Kingdom, viz. in the respective Commissariots and Shires, where they lived, if they went not abroad, animo remanendi; but notwithstanding of this Act, the Testaments of such as live abroad, though animo remanendi, must be confirmed in Scotland, by the Commissars of Edinburgh, as communis patria, else no Pursuit can be sustained, for their Movables that are in Scotland, July 18. 1666. in the case betwixt Duff and Bisset.  

ACT 90.  ANd if it be Fore-thought-Fellony, he shall die therefore. This may seem to imply, that men die not for Murder committed without Fore-thought-Fellony; But this holds not in our Law, for Murder, though committed without Fore-thought-Fellony, is punishable by Death, except it was either Casual, or in Self-Defence, and then it is called properly Homicide or Manslaughter.  
It is observable that Crimes ought regularly to be punished in the place where they were committed, that where the Scandal was given, there the Reparation should be made, vide act 34 par: 2 Jac: 1. & act 148 par: 12 Jac: 1. and this same Act is renewed act 98 par: 6: Jac: 1.  
THe way prescribed by this Act, 
ACT 91.  is now obsolet and in Desuetude; but the juster way now used is, That when a man is Denunced Fugitive for a Crime, there are Letters of Intercommuning got out against him by authority of the Council, and these are published at the Mercat Crosses, where he uses to reside; and if any within these Shires, where these Letters were published, do reset or speak with him, they are pursued as Intercommuners.  
Nota, The Resetter of a Murderer is punished as a Murderer, and this by the Civil Law is clear in Resetters, as to all Crimes, l. 1 ff: de receptat: l: un: C: de crim: pecul. which is made our Law by the 144 act par: 2 Jac: 6. and yet some think, some Resetters are only to be punished as severely as the principal Offenders, who assist in the Crime, and then reset, for these contract a double guilt; but that such as only reset them who are guilty, should be more benignly punished, and, this answers, d. l: un. C: de crim: paec: in fine & l: ult §. ult: ff: ab●g. The Civil Law excuses Parents, who reset, and punishes less Friends and Allies who reset, than others, l: 2: ff: h: t: and though this Act be general, yet it seems that it ought to be restricted by the Common Law.  
OBserve first, 
ACT 92.  That though Barons do not use to judge Murderers, yet by our old Law, such as are Infeft with Pit and Gallows, may punish Slaughter, Q: attach: c: 77. and this Act allows them, if they be Infeft with such freedom.  
Observe secondly, That by this Act, Judges who are negligent to arrest Malefactors, if they escape the being warned in both these cases pays 20 pounds.  
IT is fit for understanding this Act, 
ACT 93.  to know that Magistrates within burgh's, have not power to judge Murders, except they be Sheriffs within themselves, as Edinburgh, Pearth, Innerness, and some other Towns are.  
A Lord of Regality and his Deputs, 
ACT 94.  have as much power in judging Murder as the Justices have, though some contravert, whether they can judge Murder under Trust▪ because that is Treason, and the Justices are only Judges competent to Treason.  
Nota, There is a Case expressed in this Act, where more Witnesses than two are required to prove a Crime; The Word Croy here signifies an Assythment, which the Judge should pay to the nearest of Kin, if he be negligent in Ministering Justice against the Murderer, but this is in Desuetude.  

ACT 98.  THe sense of this Act is, that if a man has found Lawburrows, which was called Assurance by our old Law, the Friends of him who has found the Lawburrows, are punishable if they wrong him to whom Lawburrows are found.  
He who assaults with Edge and Ure, is to be imprisoned, that is to say, with an Edg'd-tool, or any thing made of Metal▪ for Ure in Scots, signifies Metal.   

King JAMES the first Parliament 7.  

ACT 101.  THe Banishing such as pay not Custom, is in Desuetude, and they now lose only their Goods so stold, as by the l. 2. C. de Vectigal.  

ACT 102.  ALL Barons might come to Parliament before this Act, but by this Act they are allowed to choose Commissars, who are now called Commissioners; and by this Act their Expenses are to be paid to them which is now done thus, The Clerk Register gives them a T●st●ficat declaring, That according to the Sederunts of Parliament, such Commissioners did Serve so long; and by the late Act they get Letters of Horning, for five pounds' a-day, vid. supra Act 52 Par. 3 Jac. 1.  
Nota, That though this Act empowers these Commissioners to choose one to Re-present them as their Speaker; yet there is no such Person now chosen, and the Chancellor is now constant Precedent of the whole Council, by the Act 1. Parl. 1. Ch. 2 d.  

ACT 108.  THis Act ordaining such as Interpret the King's Laws wrongously, to be punished arbitrarly, strikes only against such as Interpret the King's Laws so, as to make them a mere Cloak for for doing un-justice, but mistakes and probable Errors, are not punishable; nor are the Lords punishable for such mistakes, because ipsorum sententiae pro veritate habentur.  
Nota, Laws like Oaths, are to be taken according to the meaning of the Imposer, else they be elusory; and otherwise, every man would be his own Lawgiver and Judge. The Earl of Argile was found guilty upon this Statute, 1681. for Misinterpreting so the Test, by an quality adjected to his Swearing of it, That he reserved still a power to himself, to rise in Arms when ever he judged the same fit.   

King JAMES the first, Parliament 8.  
BY this Act, all the Prelates, Lords, and Barons are to swear the same Allegiance to the Queen, that they swore to the King; 
ACT 110.  and by the 136. Act Ja. 1 they promise Literas retinentia & fidelitatis to the same Queen; but the Queen being a Subject, there is no Oath now made to Her; and though by this Act none were to be allowed to enter to their Feu till they had given this Oath of Fidelity to the King and Queen (which was conform to the Feudal Law) yet no such Oath is required as to either King or Queen, before the Vassals entry Princeps legibus solutus est, Augusta autem licet legibus soluta non sit, tamen eadem illi tribuunt privilegia, quae ipsi habent, l 31. ff. de leg.  
BY this Latin Act, It is Statute, 
ACT 112.  that all such as flee from the King, or His Lieutenent, are to be punished as Nottor and Public Rebels; which Act strikes not only against such as were sworn to Colours, for those are punishable only by Death according to the Military Law; But all such as leave the King's Host being obliged to attend; and though it may be alleged, that this Act is to be extended only against such as flee in to the Enemy, for else the punishment of Treason were too severe for simple deserters; and by the Common Law, there is ground for this distinction; but by our Law there is no ground for this opinion, because the going in to the Enemy is per se Treason.  
Not. This is to be punished as Perduellion and Rebellion; but it is not declared Perduellion, or Rebellion; and therefore it may be argued, that the Fisk has not the same Privileges, as to the way of Procedore here, that he has in other Species of High Treason, or Perduellion; such as that the Person himself may be Pursued and Condemned in absence upon Probation; and that his Heir may be Pursued after his Death, etc.  
Not. It may be argued, that this Act should only be extended against such as Flee from the Army, when the King, or His Lieutenent are there in Person in the Fields, because then, there is great hazard, but not against such as desert any under Officer.   

King JAMES the first Parliament 9▪  

ACT 112.  THe Office of Maires was to Execut Summons, and the Kings Maires praeco Regis assisted in Criminal Courts, there are yet some Maires of Fee, or heritable Maires in Scotland, who have Right by their Charters to so many pairs of Shoes, and so much Money, etc. out of every Pleugh, which Fees are now very much regulated by Possession; By this Act, Maires of Fee are to present Persons to the Sheriff, to serve under them, and if there be no Mair of Fee, id est heritable Mair in that word or district, the Shireff is to present an able Person, who shall supply his place by Summonding, and this is the Origine of Sheriffs in that part to whom all our ordinar Summons are direct, by the 51 chap. stat. David 2. The Serjeand or More (for they are the same) is ordained to give in his Execution in writ, or by word, if he cannot writ, but he must prove all by Witnesses, and there the Sheriff, or Mair may make Executions or Records; for so Executions were called of old.  

ACT 113.  THat Witnesses in Executions should dwell in different Baronies is in Desuetude; That Witnesses should swear that they by-stood, saw, and heard is only required now, in the Execution of Breives, who must swear the verity of their Executions, but the Witnesses even in that case, needs not swear that they were Witnesses especially required to be Witnesses; which is only required now in Seasines which bear, that the Witnesses were ad hoc specialiter requisiti, and yet by this Act all these qualifications are required in all Executions.  

ACT 114.  Not. IT may be argued from this Law, that the Dates are substantial, not only in Breius, but in all other Papers; Likeas the rubric of this Act calls them substantialia; and therefore, if they be false, the whole writ is false, and it was so found as to Executions; whereupon one Creditor is to be preferred to another such as are the Intimations of Assignations, 29. March, 1628. or the Executions of Arrestments, for there to allow Witnesses to make up the Dates, were in effect to allow Witnesses to prefer one Creditor to another, and to establish considerable Sums by Witnesses; but if the Date of any other Writ, or Security be blotted, the owner is allowed to astruct it by Witnesses, 10. Feb. 1636. And though the Month and Day be blank, yet if the Year be expressed, a Bond, or such like Writ is sufficient, being in re antiqua, 15. January 1662.: Grant contra Grant, but in such cases, the Law presums, that the Bond was granted the last day of that Year, Vid. Gem: Consil. 79. Vid. R. M. l. 1.11.  
THere is no necessity now, that he who propons ane Essonʒie, 
ACT 115.  or Excuse shall find Caution to prove it at the next Court, for now ane Essonʒie being a Dilator of its own nature, must, like all Dilators, be instantly proven. Not. Sickness is only allowed here to be proven by two Leil-men, or the Parish-priest, or Minister deponing upon it; but with us Testificats upon Soul and Conscience are allowed in all Courts, except the Justice Court, where ●ssonzie must be proven by Witnesses present in Court, And to allow Testificats is dangerous, because they may be forged, yet they were allowed even in Treason, in E. Laudons' case, 1: Apryl, 1684. but the speciality there was, that the Earl was in Holland, for it was thought hard to bring Physicians from thence, and yet I think the Seal of the Town should be brought in that case, Vid. stat. Will. c. 26. num. 2. & Quon. Attach. c. 33.  
THe meaning of this Act is, 
ACT 116.  when any Defender finds Caution to answer as Law will (which is called here a Borgh upon a Weir of Law) he may either answer presently, or may have a day to give in his Defences, he finding Caution to answer of new; this is explained, R. M. l. 1. c. 11. num. 4. But now with us there is no diet allowed in Criminal Courts, for the diets there are peremptor.  
THis falsing of Dooms, or Appeal was altered, and in place of them are come our Suspensions, and Reductions of Decreets, 
ACT 117.  for the Doom is a Decreet; and in these Reductions and Suspensions it is lawful to insert only one Reason at first, and the rest may be now eeked without protesting for a Liberty to eke new Reasons, as is required by this Act; and a Borgh or Caution is yet necessary, in Suspensions, as it was in falsing of Dooms.  
By the Civil Law, Appeals were to be interposed within ten days after Sentence; but by this Act, the Appeal was to be used immediately, or at least before the Pursuer walked 40 paces by the Act 99 Parl. 6. Ja. 4. and in place of the words here used, viz. That Doom is false stink and and rotten in the self, and thereto a Borgh, the party leased was to say, I am gratumly hurt and injured by the said Doom, and therefore I Appeal; and this was done, because the words here used were Rude, and Unmannerly.  
THe meaning of this Act is, 
ACT 118.  That if the Pursuer be forced to find Caution, to answer as Law will, he may force the Defender to Recounter it; That is to say, to find Caution also▪ and whosoever is absent, after Caution is so found, shall lose the cause, and shall be unlawed also, Vid. c. 18. vers. 2. & 3. l. 1. R. M.  
THis Act appoints, 
ACT 124.  That the Ships which break in this Kingdom shall be Confiscated amongst us, if the Ship belongs to a Country which uses that Law against us. For clearing this, it is fit to know that by the Civil Law, the Goods of Shipwrecked Persons fell not to the Fisk. l. 1. C. de naufr: si quando naufragio navis expulsa fuerit ad Litius, vel si quando aliquam terram attigerit ad Dominos pertineat fiscus meus sese non interponat, quidenim jus habet fiscus in aliena calamitate ut de re tam luctuosa compendium sectetur; and by the Canon Law, qui christianos naufragium sacientes damnata cupiditate r●bus suis spoliant excommunicantur, c. 3. Extr. de Rapt. But yet France does Confiscate Shipwrecked Goods, le bris est confisque au signior Sovereign. ●odin de 〈◊〉 C. ult. Where it is asserted, that this was the Law of both Eastern and Western Seas; which is false, for it is not the custom of Holland nor Pole, nor Denmark, Vid. Curick ad tit. 9 jur Hans; with us, if no Living Creature escape that was in the Ship, the Goods are Wreck, and belong to the Admiral, by his Gift from the King; but if any Living Creature escape, neither Ship nor Goods are Wreck, as was decided where only ane Ox escaped, 12 December 1622. And yet by the present custom of the Admiralty, though no Living Creature escape, the Admiral secures only the Goods, and restors them, if the true Owner claim them, and prove his Property within year and day, being repaid of his Savage, for which we have no positive Statute; And it seems we have borrowed this from the Statute of Hen. 3. anno 1226. cited by Curick tit. 9 Though Skeen de verb. sig. verb. Wrack citys another Statute, viz. Anno 3. Ed. 1. C. 4. So that though the Custom seems unjust, yet this Law has seemed just, because of Lex talionis; And the Title, quod quisque juris in alium statuit ut ipse eodem jure utatur; tit. 2. lib. 2. ff. And yet our present Custom has justly corrected this Law in manner above mentioned. And I likewise believe, that even after the Year is Elapsed, the true Proprietar may recover his Goods, if he prove the Property, and if his Goods be extant; for 1. That which is mine, cannot be taken from me without my own fact and deed. 2. There were as good reason for the King to seize upon Goods that were Robbed by Land, for the Proprietar quytes his Goods as unwillingly in the one case as in the other, 3 lie. Even in Goods that are thrown over Board for the security of the Vessel; the Law presums no design in the Proprietar to quite them; as de relicta § Fin. Inst. de rer. divis; And therefore much less ought this to be sustained in Goods forced from the Proprietar by a Tempest, since there is some consent in the one, but none in the other. 4 to. If any private man seize on such Shipwrecked Goods, his seizing on them would be a Crime, l. 1. & l. ult. de in●end. ruin. l. de submersis C. de naufrag; And it is strange, that private men should be punished, because they seized on what was another's, and yet the same calamity which aggrages the Crime in them, should establish a Right in the Public; and it may be well argued, that either the Property is lost by the Shipwreck, and if so, why has the Proprietar action against the seizers; or if it be not lost, how has the Fisk acquired the Property, for duo non possunt esse domini ejusdem rei in solidum. 5 o. There is less reason for a shorter prescription in such than in any other Movables, For in other Goods there may be a presumed design to quite the possession but here there can be none; for it is palpably to be imputed to force. 6 o. This is destructive to all Commerce, and no Nation ought to sustain it, because all Nations will loss equalie by it. 7 o. The Owners may not know where to seek their Shipwrecked Goods because lost in very remote Countries; and oftentimes the Owners themselves being lost with them, leave none to prosecute their Rights; so that upon the whole matter it seems, that the custom of other Nations can no more justify ours in this, than the eating of our men amongst the Cannibals would justify our eating them; and it seems rather that Letters of Mark aught to be granted in such cases, if restitution be refused.  
THough this Act appoints Advocats to give their Oath of Calumny only in Temporal Courts, 
ACT 125.  yet this holds also in the Commissar Court, which is a Spiritual Court, and curia christianitatis.  
Obs. 2. It seems that Oaths of Calumny can only be craved in initio litis, in the beginning of the Pley or Cause, but yet now an Oath of Calumny may be asked at any time.  
Obs. 3. That though this Act appoints Advocats to give their Oaths of Calumny, if their Client be absent, yet that only holds in matters of Fact, as to which the Advocate is not obliged to swear, if his Client be present, but as to allegiances in point of Law, the Advocate is obliged to swear though his Client be present.  
Their Verses are taken out of Hostiensis tit. de jur. Calum. & Gloss. in § 1. just. de paen: tem. litigant; which shows amongst other arguments, that the Acts of Parliaments, as we have them now Printed, are not the same as they passed in Parliament.  
I have heard it debated in the Process, Keith contra Purves, March 1684. That an Adocat was not obliged to give his Oath of Calumny, whether he thought the Right upon which he Debated was really to the behoove of the Earl of Marshal, but only in general, that the Advocats had good reason to Debate it was not to his behoove, because their Client said so to them; But if this be allowed, an Oath of Calumny will signify nothing, for Advocats may always find subterfuges to depone, that they have good reason to urge such a thing, for they may think their Client's Information sufficient warrant for them, though they are convinced the same is palpably false; whereas the true Design of the Act of Parliament was to debar Advocats from proponing Defences, and insisting in Pleas which they thought unjust and Calumnious.  
ARe in Desuetude. But I am of Opinion, 
ACT 126 and 127.  that Brieves with us have not their Origine from the Civil Law, as Skeen thinks, because sententia erat de brevi recitanda, or from the breve testatum of the Feudal Law, for these are very different from our Brieves; but from the Court of Rome, for their Brieves are exactly the same. With ours, as breve de capienda possessione breve contra intrusum vide Amydenium de stilo datariae, cap. 28. lib. 1. Rebuff: praex: Reg: 34.  
THis Act is abrogated by the Union of both Kingdoms, but from it may be observed, 
ACT 128.  that to go and live in a Country, that is in War with the KING, is Treason, since the Enemy becomes thereby stronger and richer, and the Kingdom weaker and poorer.  
UPon this Act is founded the stile of Lawburrows, which bears, That the Raiser dreads Bodily Harm of him against whom he seeks Lawburrows, 
ACT 129.  and that he has given his Oath to that effect: This is like that Oath of Calumny, Quod tenetur ille prestare qui novum opus nunciat, l. 5. §. 14. ff. de novo oper: nunciat: But it is the same exactly with the cautio de non offendendo, used both in France and Flanders, in which the Oath of the Party is sufficient, ubi expectatio mali juramento ejus qui securitatem petit confirmari sufficiet Christien: ad leg: Mechlin: art: 1. tit: 4. num: 4. And with us, such as break Lawburrows, are pursued by an Action of Contravention; Which Term is likewise used among them in the same sense, art: 8. num: 16. Ibid.  
Observe, That though the Letters of Lawburrows contain no such Warrant in the Body of them, for taking the Chargers Oath, that he dreads bodily harm; and though the Messenger who executes the saids Letters, does not exact the said Oath from him, at whose Instance the Letters are to be Execute; yet that neither annuls the Letters, nor the Act of Caution, though it would seem that Caution is only to be found, because that Oath is given; but yet the Party might have Suspended upon that ground, and would not have been obliged to have found Caution, till the Charger had given his Oath, conform to this Act.  
Freeholders' or their Acturneys, should compear at Head-Courts; 
ACT 130.  but though this Act says, That if they be absent upon a necessary Cause, they may send their Acturney; yet the praxi, though they can prove no reasonable Cause, they cannot be Unlawed, if they send any person with a Letter of Acturney, which is raised out of the Chancellary, and the sending of Seals is now in Desuetude, for Services and Verdicts in Criminal Causes, which are the only Papers that need now to be Sealed, may be Sealed with any borrowed Seal.  
Obs. primo, Several Regalities in Scotland, have Chappel and Chancery of their own, and grants Acturneys themselves.  
Obs. secundo, Regalities are still a part of the Shire; and therefore the Sheriff may cite the Vassals of the Regality, but the Lord of Regality cannot cite these who live within the Shire, without Letters of Supplement, obtained by deliverance of the Lords for that effect, vide Act 10 Par 5 Ja. 2.  
Obs. tertio, That the Unlaw warranted by this Act to be imposed by Sheriffs, for absence from Head-Courts, cannot exceed 10 pounds, February 7. 1624. December 6. 1628. And the same Unlaw of 10 pounds is allowed for absence from Baron Coutrs, March 16. 1622. It has been likewise found, that though a Vassal having been in use to have his Servant received as his Acturney at those Courts, without a formal Letter of Acturney out of Chancellary, cannot be Fined quoad by gains, because of the preceding Custom; Yet for the future, they will be obliged to send formal Letters of Acturney, or else they will be Fineable, Intimation being made to them, that the former Custom will be no more allowed, July 11. 1678. The Bailie of the Regality of Paisley against the Laird of Duntreath.  
THe taking of Salmond at all times is allowed on the Waters of Saloway and Tweed, 
ACT. 131.  as long as Berwick and Roxburgh are in the English men's Hands, but it is Rescinded upon our Kings succeeding to the Crown of England, by the 5 Act 18 Par. Ja. 6.   

King JAMES the first, Parl. 10.  
THis Act discharging the selling Salmond abroad, 
ACT 132.  except the one half of the price be paid in Money, is in Desuetude.  
THis Act is Declaratory of the former Law, 
ACT 133.  else it could not have been drawn back to the prejudice of the private Right here mentioned, and this was suitable to the Common Law; for the Governor of the Kingdom is but a Tutor, and a Tutor cannot alienat Lands belonging to the Crown.   

King JAMES the first, Parliament 11.  
THese who break the King's Protections are ordained to be punished, and the Protections here mentioned, 
ACT 134.  are these Letters which our Kings of old granted to Monastries, burgh's, etc. taking them into his special Protection, and discharging all his Subjects to injure them, under pain of his highest Displeasure; and it is observable, that Assizes were to sit upon these, whether the Party accused was present, or absent. Those Protections are now in Desuetude, nor can any Panel be proceeded against now in his absence, except in the case of Perduellion allanerly. What we now call Protections, were called there Supercederes, but not Protections. By the Civil Law, publica tutelae assertio principis solius eratl, capital: §. ad statuas. ff. de pan nunc salvagardiae dicuntur, vid. argentrate pag: 190.   

King JAMES the first, Parliament 13.  

ACT 137.  IT was lately doubted, whether Theft-boot, which is the Transacting with Thiefs, by a Judge, for freeing them from punishment, be in Desuetude; and it was found a Crime yet punishable. There are two kinds of Theft-boot declared by this Act, to be punishable, the one is to sell a Thief, which is to take a Ransom for liberating him, 〈◊〉 other to Fine with a Thief, that is to take a share of what he has stolen, and so dismiss him, both which are expressed, Act 2 Par. 1 Ja. 5. by concording with the Thief, and putting him from the Law. The punishment by this Act seems to be the loss of the Right of Regality, as to Lords of Regality, but to be death in Sheriffs, Justices, etc. And if so, it seems strange that the Lords of Regality shall be 〈◊〉 punished than others. But I think the punishment as to both, 〈◊〉 of Life and Office, and the words of the Act are only ill placed. And by the Civil Law, whoever commits either of these, are punished as the Thief himself, l. 1. ff. de Receptator, where the two species of Theft boot expressed 〈◊〉 in this Act, are also there expressed, quia cum apprehendere latrones possint pecunia accepta vel subreptorum parte demiserunt; and this Act punishes only Theft-boot in Judges: but yet if a private person take a part of the stolen Goods, he may be punished as a Resetter, albeit the mere letting of a Thief go is not a Crime in him, since he is not obliged to take him.  
This Act was necessary, because formerly, Transacting with Thiefs was discharged, but no punishment expressed, Quon. Attach. c. 42. & 77. & stat. 1 Rob. 1. c. 3 & stat. Will. c. 15 By which last, who Redeems a Thief est legem aquae subiturus, which is now in Desuetude.  

ACT 138.  THis Oath is not now put to Assizers, except the Party require that they be purged of Partiality; for the ordinary Oath now used is, That they shall Truth say, and no Truth conceal, in so far as they are to pass upon this Assize.  

ACT 139.  Crowner's do not now arrest Malefactors, for all arrestments are by Messengers, or the Macers of the Criminal Court; but yet some heritable Crowner's do assist at Justice-Airs to this Day, and keep the Bar, and secure Malefactors as they go, and come from, and to it.  
THere is a double interest in all Crimes, 
ACT 140.  the Fisk or King has an interest, because his Peace and Laws are broke, and his Subjects wronged, and this is called by the Civil Law, vindicta publica. The person wronged has another interest, which is called vindicta privata. That the King may pursue without the concourse of the person injured, is clear by this Act, but because this Act allowed only Sheriffs to pursue without consent of the party; therefore this is extended to all cases, in ●●vours of the King, Act 76. Par. 11. Ja. 6.  
THis Act is abrogated by the Union of both Nations, 
ACT 141.  but argumento hujus legis, the taking Protections from, or assurance with any Enemy of the State is Treason, and it may be alleged that assuring Merchant Goods, or Ships by Hollanders when we had War with them▪ was Treason by this Act, and by the Common Law; for this is a corresponding with Enemies.  
A Thief now by the Regulations must be pursued upon 15. days only, as all Malefactors. 
ACT 142.   
VIde Act 50. Parl. 7. Ja. 3. & Act 107. Parl. 7. Ja. 6. and such as failyie to bring in Bullion are punished, 
ACT 143.  Act 51. Parl. 7. Ja. 3. & Act 65. Parl. 8. And all is now innovated by the Act 37. Parl. 1. Ch. 2 d.  
THe Bell rung in Edinbrugh, at 9 at night, conform to this Act, 
ACT 144.  till it was ordained to ring at 10. (as it does) which being altered at the desire of the Earl of arran's Lady when he was Chancellor, it is therefore called the Lady's Bell. From her also the Steps leading to St. Giles Church are called the Lady's Steps.  
BY this Act, 
ACT 145.  the Law is to be holden where the Trespass is done, which is most just; because, by punishing Crymes upon the Place, the Scandal there given is taken off by a proportional terror. 2. The Friends of the Party injured, are thereby better repaid. 3. Probation is more easy got, and Assysers upon the Place are readier to do Justice, as knowing better the matter of Fact. Vid. Stat Will. Reg. c. 18. And is conform to the Civil Law, l. 3. ff. in prin. de Re milit: & tot: tit. C. ubi de crimine agi oportet; and that this was the old Law of Nations, is clear by Quint. C●rt.  
THe carriers of Gold and Silver, 
ACT 146.  (except in so far as is necessary for Spending) infers also the escheat of the Carriers other Movables, Act 69. Parl. 9 Q. M. But the falling of their Escheat was but 5. lib. after that Act, and is now in Desuetude, so that the words under the pain of Escheat is to be interpreted of Escheating the Money so carried allanerly.    


K. JAMES II. Parliament I.  
THIS is not an Act, 
ACT 1.  but a Declaration concerning the Fidelity Sworn by the Parliament, to their young King; and I find no such Declraation, or acknowledgement in an other Parliament of any other King: So this is rather set down as a Narration, than as an Act of Parliament; For it mentions not Bishops, and it expresses the consent of al● the Freeholders'.  
THis is the first Revocation that I find made by any of our Kings, and here Dispositions made by the King of Movables, 
ACT 2.  is revoked, and though no mention be made of Movables, in latter Revocations; Since a King who is Minor, Disponing Movables without an onerous Cause, may Revock them.  
2 lie, It is observable that the King is (as his Subjects) Minor till 21 years complete, and that the Parliament is in place of Tutors to Him.  
3 lie, This Inventar is conform to the Civil Law, whereby the Tutor was obliged to make an Inventar of his Minors Estate, and which is made our Law, by the Act 2. Sess. 3. Parl. 2. Ch. 2. and to make an Inventar unto Dupois, is to make it according to weight; Dupois being a French word, signifying Weight.  
4 lie, That in this Act, rather the Parliament than the King Revocks, for the King was then minor; but regularly the King's Revocation passes under His Privy Seal first, and then is Confirmed, and past by an Act of Parliament, Vid. Act 9 th'. Parl. 1, Ch. 1. But sometimes it passes first by Proclamation, and then by Act of Parliament, Act 51 Par. 4 th' Ja. 4 th'. And sometimes by way of Instrument, Act 70. Par. 6 th' Ja. 5 th'.   

King JAMES the Second, Parl. 2.  

ACT 3.  THE only Act in this Parliament Warrants the Kings Lieutenent to force such as lie under violent presumptions of Spilling and Troubling the Country, to find Caution, that the Country and the King's Subjects shall be unharmed, which shows clearly, that the King may upon Presumptions (of which He is sole Judge) oblige any of His Subjects to give Bond to live Peaceably, without which, the Government could not Subsist.  
This Act was occasioned by the great Outrages, committed by Archibald Earl of Dowglas, in the South, during the King's Minority.   

King JAMES the Second, Parliament 3.  
VID. Stat. Dau. 2 d cap. 42. Concerning the Liberties of the Haly-Kirk. 
ACT 4.   

ACT 5.  TWo Justice Courts were to be held Yearly by the Justices, at Edinburgh and Peebles, c. 79. Quon. Attach. and two Justice-airs are to be held yearly, the one upon the North-side of Forth, and the other upon the Southside of Forth, c. 30. Stat. Rob. 3 d. And by The Scots Sea, is meant here, The Water of Forth. Secundo, That part of this Act, which appoints Lords of Regality to hold Justice Courts twice a year, is now in Desuetude.  
BY this Act, after word is sent to the Council, that there is any Rebellion, 
ACT 6.  Burning, etc. The King is to call the Sheriff, and see it Redressed, and all the Barons oblige them to assist the King with their Persons and Goods, as oft as it shall be seen needful, by Advice of His Council: From which, it is observable, That the King needs not call a Parliament, to assist Him in a War; but that the King and His Council, may call for Men and Maintenance, in case of War, and this was very reasonable, for Rebellion may be Invincible, before a Parliament be assembled, and Parliaments do often give little help, in case of Combination, if the occasions of it be popular, as was too clearly discovered in our late Rebellion.  
The reason why in the former Act and this, the Advice of the King's Council is still expressed as necessary, was, because the King was then Minor, and His Person had been several times surprised.  
In all this Parliament, there is no mention made of the Authority of the Regent, as uses to be when the King is Minor, but only the hail three Estates have Ordained, which I think proceeded from the Hatred, the Nobility had at that time to Alexander Livingstoun, who was then Regent. I find, that in the Ratification of the Acts of Parliament, called the black Acts, Folio 149. The Duke of Chattelrault than Governor, is placed before the Queen-Mother, than Regent.   

King JAMES the Second, Parliament 4.  
OBserve that Excommunication takes away personam standi in judicio, 
ACT 7.  So that Excommunicate persons cannot pursue nor defend; for the Act says, That they shall not be heard nor answered in the Law of Judgement; and though the Word (answered,) would import only, that they cannot pursue; yet the Word, (Heard,) Imports both Pursuing and Defending; and the Words, Heard, nor, Answered, had been superfluous, if they had been to express only the Pursuing.  
This Act and the 4 th' Act 3 d Par. Ja. 2 d. Were made upon the Earl of crawford's Cruelty to Kennedy, Bishop of Aberdene.   

King JAMES the Second, Parliament 5.  
THis is the first time I find Art and Part mentioned in our Law. 
ACT 8.   
Nota: The time forbidden by Law for killing of Salmond is, from the Feast of the Assumption, viz. the 13 of August to St. Andrews, which is the 30 of Nou. Act 34 Par. 2▪ Ja. 1. And though the third Fault was death by the 10 Act Par. 1 Ja. 1. Yet by this Act, the third Fault is only punishable by loss of Office. vid. Act 224 Par. 14 Ja. 6.  
THe form of causing restore Goods Spuilyied now is, 
ACT 9  That the Sheriff, or any Judge discern, and upon this Decreet Letters of Horning are raised, and the Defenders Denunced; We find by this Act, that old Rule of the Canon Law, Spoliatus ante omnia restituendus, here Confirmed, and the meaning of it is, That though the Spuilzier have a sufficient and valid Right to what he has Spuilyied, yet being pursued, his Right will not defend him; but he must first restore the Person Spuilyied to his Possession, for the Law will not allow any man to be his own Judge, and to Intromet at his own hand.  
Obs. secundo, That of old, all Decreets were under the King's Wax, that is to say, His Seal; and till of late, and the last Institution of the Session, all Decreets, even of the Session, were under the Quarter-Seal.  
OBserve, That all Scotland is divided in Royalty and Regality. The Royalty is that which was Judged by the King's immediate Judges, 
ACT 10.  as Sheriffs, and they are here and elsewhere, called the Lords of the Royal.  
THese who were Excommunicated, were denunced Rebels, and Letters of Caption raised against them; and this Act, as to this point, 
ACT 11.  is founded upon cap. 6 th'. Stat. Rob. 3 d. and is morefully explained, Act 53. Parl. 3. Ja. 6. Where these Letters are appointed to be raised by the Authority of the Council, after 40. days are expired from the date of the Excommunication.  
Nota. This is the first Act that speaks of apprizing of Lands, and it was done then at the Mercat Cross, in the same way that Movables were then, and are yet poyndable.  
Nota. THe punishment of such as break the Peace, is left Arbitrary by this Act, 
ACT 12.  and by this Act, Justices of the Peace are ordained (Irenarchae by the Civil Law,) of which there are whole Titles in that Law.  
VId. Sup. Act 3 d. Parl. 1. Ja. 1. As also by this Act, it is clear, 
ACT 13.  that Forfaultors for Rebellion were only to be led before the Parliament, for it is here said, that they shall be punished by the advice of the Three Estates; but now open Rebels, rising in Arms, may be Tried and Forfaulted by the Justices, by the Act. 11 th'. Parl. 2 d. Ch. 2 d.  

ACT 14.  THis was Statuted before, as to Murder, C. 17. l. 3 d. R. M. by a Trespassour justified in this Act, is meant a Person condemned by Law or Justice, and it is oft so meant in all old Laws.  

ACT 15.  THere are now no Wardens in the Borders, but these affairs are manadged by Commissions from the King, called Commissioners for the Borders.  
ALL Officers offending wilfully, are to lose their Offices for a Year, 
ACT 16.  by this Act, but this Act is not the only punishment, for if a Judge execut a man wilfully, he will die for it; and a Judge being partial, or refusing to do Justice, is to be punished Rigorously, Ja. 1. Parl. 2 d. Act 45. and if he be Faulty, or Negligent, he loses his Office; if it be Temporal for a Year; or is to be Suspended from it, if it be heritable; Ja. 2 d. Parl. 14. Act. 76. vid. Ja. 3 d. Par. 5. Act 27. & Ja. 3 d. Parl. 14. Act. 105. And the punishment of Judges offending in their Offices, is now Arbitrary, suitable to the nature of the Offence.  
TAcks, which before this Act were only Personal Rights, 
ACT 17.  and were only valid against the granter; are by this Act (for encouraging Tenants to improve their Rooms by Tacks, and for the security of Poor Labourers) made Real Rights, and defend against all Singular Successors, that is to say, the Buyer, or the Superior of Lyfrent Escheats, or Compryzers, or Donators to Bastardies, or Ultimus Haeres; but if the Land fall in the Superiors hands, through Ward, the Tack sleeps, and reverts again at the expiration of the Ward. Vid. Obs. on Act 26. Parl. 3 d. Ja. 4 th'. and they will defend against Donators to Forfaultors, though the Tack be not confirmed, if it be Set for an ordinary Duty, and without design to prejudge the Fisk, as was found in the Case of General Dalʒiel contra the Tenants of Caldwall, 28. January, 1674. For though the Rubric says, that the Buyer shall keep the Tacks, yet the Act bears, in whose hands soever they come; and as no Tacks-men craved ever a Confirmation to Defend against Forfaulting; So it would shake louse all poor Labourers Securities, if they were not Secure against such delinquences; and might probably prejudge much the King's interest, by tempting them to follow their Master, if they knew that they behoved to be Forfaulted by his Crime. This Decision agrees with Craig, pag. 206. and a Decision 1570. Hume of Manderstoun; But the Council did justly think, that this Decision could not defend the Tacks-man of a Castle from giving it up to the KING, since Fortalices are not made for labouring the ground, and therefore also Summar Warnings are allowed from them on six days.  
Though this Act be only conceived in favours of Labourers of the Ground, yet it is extended so, as to defend all Tacks-men, whether of Tenements within Town, (though the Act seems only to be made in favours of poor Labourers of the Ground), or of Casualties; such as Salmond-fishing, Coal-heughs, Coal-work; etc. and generally it extends to all Tacks, but not to Rentals, for these are Tacks for Grassumes and Entries, and so for small Duties; providing always these Tacks be clad with Possession, for Possession is the same thing to Tacks, That Seasines are to Alienations, and of old some Tacks had Seasines, or Instruments of Possession, but neither was necessary, nor is now usual, but Possession is so far necessary, that the last Tack, with the first Possession is preferred; and the reason why they used Seasins then, being to make the Tack Real, and to defend against Singular Successors; this was no more used after this Act of Parliament, by which Possession makes a Tack a Reall-Right, but a Tack is preferred to an apprizing, though the apprizing was led before the Tack was clothed with Possession, since the Lands were Denunced after the Date of the Tack, March, 1628.  
Since Tacks are only declared valid against Singular Successors, by this Act; Therefore Obligations not to remove a Tennent, will not be sustained against a Singular Successor, albeit it be expressed in the Tack, though that as a Personal Obligment be valid against the Setter, and his Heirs; For if this were sustained, the Buyer would be thereby debarred from using and improving his Property, as he thought fit, contra naturam dominij: And that it is not of the nature of a Tack, is clear from this, because Tacks must have a certain is, which this has not, though the Obligation should bear not to remove till Money Lent at the Setting of the Tack were paid, 15. June 1664. Thomson contra Reid, and for the same reason, a Tack set to one during his Life-time, with express provision to receive the Tacks-mans' Heirs as kindly Tenants, for payment of the accustomed tack-duty, will not be valid against a Singular Successor, as wanting a certain is; albeit the Tacks-men offer to restrict the Tack to the Life of an Heir allenarly, 2. March, 1626. And a Tack set from 5. Years to 5: years. upon payment of the old Duty, was not sustained against a Singular Successor, 26. July, 1631. But Tacks are valid, though they bear no special time of Entry, since the present time is in the Construction of Law presumed to be the time of Entry in that Case, 4. December, 1629. As also since a Tack must have a certain tack-duty, as well as a certain is; Therefore, where the Tack contains not a certain tack-duty it is not valid against a Singular Successor, and thus a Tack bearing, that a Tacks-man should retain the Annualrent of 600. marks, for the tack-duty would not have been valid against a Singular Successor, because, in that case, there would nothing have been payable to the Singular Successor, yet if the least superplus had remained over the payment of the Annualrent, though it had not exceeded one penny, the Tack would have been valid, because there would have been in that case a tack-duty, 15 th' June, 1664. Thomson contra Reid; and for the same reason, a discharge of the tack-duty before hand, though for an onerous cause; and though the discharge was in the body of the Tack, will not Defend against a Singular Successor; and this very Statute bears, that these Tacks shall be valid to the Tennent for sicklike mail as they took them, for 31. January, 1627. Ross contra Blair; and therefore it being controverted whether a Tack set to a Creditor wherein he was to have Retention of the tack-duty, aye and till he were paid, and relieved of the Sums due to him, should be sustained against a Singular Successor, it was found, 11 th'. December, 1671. Currie contra Oliphant, that the Tack was to be sustained, because the Retention was to be allowed, by an express Clause in the Body of the Tack itself, and not by a Paper a part, and because the Tacks-man was to pay a dozon of Hens, and another of Capons by and attour the Sums that he was to retain, and was to relieve the Setter of the public Burdens, which was to be in place of a tack-duty; but though this may hold where the Tack bears the Sums expressly, whereof the Tacks-man is to have Retention; yet it were very dangerous to allow Tacks bearing only in general; that the Tacks-man should retain his tack-duty till he were paid, and Relieved of what Sums were due to him, and for which he stood engaged; and if this were allowed, no Singular Successor could know even by Production of the Tack whether there were any superplus due, which might be in place of a tack-duty, and it cannot be denied, but that the first design of this Statute, was to continue Tacks, the Tacks-man paying the true Duty, and therefore this Act says; They shall be valid for sicklike Mail as they took them for, and Craig pag. 205. says, Si assedatio facta fuerit, nec certam contineat mercedem, non valet ex jure & si eadem merces assignata sit calono, assedatio non valet; And therefore a Tack for 36. lib. of Duty, bearing, That the Tacks-man should retain the tack-duty for Reparations, was not sustained, in so far as concerned the Reparations, though the Reparations were necessary, nor is there any tacit Hypothetick in our Law for Reparations, as in the Civil Law; but if the Singular Successor had known of such a Clause, in the Tack, the Lords inclined to think that the same had been obligator against him; and yet a Singular Successor is not obliged to consider a prior Seasine, except it be Registrated, or a prior Disposition, nor any assignee a prior Assignation 5. February 1680. Rae contra Finlason.  
By the Civil Law, Tacks were not valid against Singular Successors, l. 9 C. de locato, but the Law of Holland agrees with this Statute, Neolstad: decis: 30.  
THis Act was thought to have been in Desuetude, 
ACT 18.  till it revived by a Decision, Feb. 1666. Lord Lee contra Mark Porthouse, but it is yet so to be understood, as that the Land set in Tack, must be valued according to what it was worth when the Land was Wodset; for if the Land be improved by the Wodsetter, it were unjust, that the Wodsetter should lose thereby, and therefore a Wodsetter improving Land, will not lose his Tack, though the Land become worth more than twice the tack-duty, and though it would seem, that there is a contradiction in this Act because it says in the first Part, That if any man has Wodset Lands, and sign takes them for long time after the Land be quit out, for half Mail, or near thereby, that these Tacks shall not be keeped, but if they beset for the very Mail, or near thereby; yet the answer is, that this Law was so worded, to show that the Parliament designed, that Tacks after Wodset should not be keeped after Wodsets are Redeemed, except they be set for a tack-duty, somewhat proportionable to the worth of Land; and because this could not precisely be determined, therefore by comparing these two expressions; It is clear, that such Tacks after Wodsets are to be sustained if they be set for more than the half of the Real-dutie, though they be not for the full Duty.  
This Act is in effect, but an exception from the former Act, which having appointed all Tacks to be valid against singular Successors. This Act begins, But if Lands be Wodset, and the Here●or Granter of the Wodset be obliged to grant long Tacks for an unconsiderable Duty, after the Lands are Redeemed, these Tacks shall not be kept. and therefore it may be argued, that this Act should only defend against the Setter, but not against singular Successors, because the preceding Act, from which it is an exception, was only conceived to secure against singular Successors. But to this it is answered, that the former Act needed not secure against the Granters, for they were ever, and still are Sufficient against them; and this Act runs not against singular Successors, but in general, declares such Tacks null, as Exorbitant and Usurary, and so should be null against all; but if there be a valuable consideration to clear, that they are not Forced and Exorbitant, they will be sustained, as in the case, Polwart contra Hume, January 21. 1662. where it was found, that a Tack for a Duty, far within the worth, to be granted after Redemption, was valid, because it was by one Brother to another, who might have given it for a Patrimony, and the Brother who got the Wodset, was excluded by a Liferenter thirty six years.  
Their Tacks who are to begin after the Redemption of Lands Wodset, are valid against singular Successors, though they be not clothed with Possession, prior to the singular Successors Right, because they are a part of the Reversion, and not because they could not begin till the Lands were Redeemed; for if that were a good reason, than a Tack whereof, the Entry is deferred, for several years, should be valid against the singular Successor, who had got a Disposition of the Lands, long after the setting of the Tack, though before the Tack was clothed with Possession, which is not true; and if it were true, since Tacks are not to be registrated, no man should know with what Tacks Lands are burdened, for this can be known no otherwise but by Possession.  
These Tacks which are to follow Redemption, are valid, though they be not contained in the Wodset, if they be of the same Date with the Wodset and Reversion, as Hadingtoun Observes; but in this case it may be doubted, whether these Tacks ought not to be Registrated, since all eeks to Reversion are to be Registrated, or else how can a singular Successor know them; and yet it is otherwise in Tacks, which are to follow Redemption of Annualrents, for as an Annualrent is different from the Land, it being but a Servitude upon the Land, so the Possession of the one cannot in Law be constructed to be the Possession of the other.  
VId. Stat. 2 d Rob. 1. c. 12. But now Spuilyies are pursued before the Lords or Sheriffs, as other Civil Actions. 
ACT 19  There are many severe Acts in this King's Parliaments against Spuilyies, because there were many then committed by the Douglasses and others.  
FEinȝied Fools, and Bards, and Sornars, and such like Runners, 
ACT 21.  are by this Act to be Imprisoned, and have their Ears nailed to the Throne for the first Fault, and to be Hanged for the next; and such as feinȝie themselves to be Dumb, are punishable by the general words of this Act, or others such like Runners. But it may be doubted, if such punishments inferred argumento legis, can be extended beyond an arbitrary punishment; and yet the feinzing ones self Dumb, thereby to draw Money from the people, is species falsi.  
THe buying and keeping of Victual to a Dearth, 
ACT 22.  is a Crime in all Nations, and is punished with us, as Regrating; by this Act it is punished as Usury, and by Escheating the Victual: and yet this punishment has never been practised, but the ordinary course to prevent this Crime is, that either the secret Council sets prices, in cases of foreseen Dearth, or else the Magistrates use in their respective Towns, to cause break open the Doors where such Victual is kept, and sell it at convenient prices, which is Warranted by the 29 Act 4 Parl. Ja. 5. Vid. crim. pract. tit. Forestallers.  
THe escheating of old Corn-stacks, 
ACT 23.  that are kept longer than Ȝuil, was found to be in Desuetude, at the Justice-air in Jedburgh, 1669. and the first part of the Act, ordaining all Victual bought by private persons, more than will entertain their Families for that Cropped, to be therefore Escheat, is also in Desuetude, this was punished in the Civil Law, per. l. Jul. de annonâ, and is punished tanquam crimen extraordinarium, l. 6. ff. de extraor: crim: and such as are guilty of it, were called Dardanarij, or revenditores, Tholos: cap: 135. num. 10.  
NOt only such as keep out their Houses upon public accounts are punishable as Traitors, 
ACT 24.  but even these who keep out their Houses for private Quarrels, if they be Charged by Letters from the Council, to render them as use is by Heralds, they are also punishable as Traitors, in case of contempt; but if these who keep out their Houses upon private Feids, do thereafter yield them, the keeping them out is only punishable arbitrarly, and not as Treason; not only are such as keep out their Houses immediately against the King, executed as Traitors, as we see in Robert Steuart's case, who was Executed January 5. 1615. But such as hound them out to keep their Houses, are Executed as Traitors; and thus the Earl of Orknay was Executed, for hounding out his Son, February 1. 1615. Though hounding out be not expressed in this Act, for hounding out is still Art and Part; But the Justices refused, February 2. 1674. In Assints Case, to sustain the Garisoning of Assints House, to infer Treason, except it was Garisoned after the Publication of the Letters of Fire and Sword, and that the Garisoning of it before, did only infer Deforcement, it being commanded to yield by the Sheriff, in the King's Name; By which it seems, that Garisoning Houses, to defend against Execution of the Law, infers not Treason, except it be done, either upon a public account, or after raising and publishing Letters of Fire and Sword. 2 do, Some argue from Act, that since the assailing of Houses, where the King's Person is, shall be repute Treason, if it be done without consent of the three Estates, that therefore it is lawful to assault Houses, or rise in Arms, with consent of the three Estates; But this is a great mistake, for no opposition to, or Invading of the King, can be justified by a Warrant from the three Estates; and the meaning of this Act is, That though it be pretended, that the King is Prisoner in any Castle, it is not lawful for any private person, upon that pretext, to raise Armies and Invade that place, without authority of Parliament; For it is dangerous to make private persons Judges in such considerable Cases. And the rising in Arms, or defending Castles, on what pretext soever, is declared Treason by the 5 Act 1 Par. Ch. 2. The occasion of this Act was, because this King had been twice kept in Castles in His Minority, once by the Chancellor Sir William Creighton, and thereafter by Sir Alexander Livingston, Governor; and at both times endeavours were used to besiege the Castles of Edinburgh and Stirling, where he than was, Vid. obser. on 5 Act 1 Par. Ch. 2.  

ACT 25.  BY this Act, Regalities returning to the King in Property, viz either by Sale or Forefalture (for the King's property is never erected in a Regality, but in a Stewartry) shall be judged by the Sheriffs, and the ordinary Judges; and ordinarily when Regalities return to the King, they are expressly suppressed, and Erected of new in Stewartries, as Orknay, Act 13 Par. 2 Ch. 2.  
Obser. That regulariter, these who dwell in Regalities are not subject to the Sheriff, vid. Act 43 Par. 11 Ja. 2. And Erections of Regalities do ordinarily bear a power to Repledge.  

ACT 27.  THe meaning of this Act is, That the Justice Clerk shall not reveal who raises Summons, or obtains Warrants for apprehending Malefactors, etc. Lest also the Malefactors, or Defenders escape, before they be cited or apprehended; as also, that when any man is Delated for one Crime, the Justice-Clerk change not the pursuit, and raise it for another Crime, and whereas it is said, That it shall not be lawful to him to translate such Actions, except it be for the better to the King; the meaning is, that if the Informer ignorantly Inform in a great Crime, as if it were a small Crime, as if he should Inform only that to be a Riot, which is Treason, the Justice-Clerk may raise the Pursuit as for Treason.  
It is clear, that since by this Act the name of the giver up of Ditty in the Porteous Roll is to be concealed (which is done for encouraging Persons to delate) that therefore Treason should not be given up in a Porteous Roll, or else the paena talionis is lost, nor do I remember, that Treason was taken up of old so, and if this were allowed, discontented Tenants, or Servants knowing they were secure against talion might be induced easily to destroy their Masters.  
THis Act appoints the Strickers of false Coin to be punished as Law will, and by the Act, 124. Parl. 7 th'. Ja. 5. 
ACT 28.  It is ordained, That they who falsify Money, or counterfeits the King's Irons shall be punished according to the old Law, and yet I find no Law before that time, specifying the punishment in general; For the 41. Act Parl. 5. Ja. 3. punishes only with Death, the Home-bringers of Black-money, That is to say, Copper-money and by the Act 70. Parl. 9 Q. M. The Home-bringers of the false Coin should be delated, and the Delaters is to have the half of all his Goods Movable, and immovable, but though the punishment of Treason be not specified in any express Act; yet it appears, that it infers Forfeiture, for else the Revealer could not have the half of the Offenders Goods immovable, and I find one Drummond burnt for False Money forging, the 27. November, 1601. And his Brother Patrick Murray burned also, for Art and Part, red counsel and concealing the Treasonable Forging, Coining, and Out-putting of false Money, and the Sentences upon False Coin, bear ordinarily Forfalture. vid. supra Act 49. Parl. 3. Ja. 1. But it were expedient to make an express Act in this case.  
THis Act is now in Desuetude; 
ACT 29.  and it was sounded upon the missio in possessionem per primum & secundum decretum, so much Treated of● in the Civil Law; but in place of all these are come our Compryzing, and Adjudications, whereby, if the Debtor pay not, the Creditor Compryses, and is put in Possession, and if he Redeem not within the Legal, than the Land belongs absolutely to the Creditor without Redemption.   

King JAMES the second, Parliament 7.  
BY this Act, The Home-bringing of Poison is discharged, 
ACT 30.  under the Pain of Treason; and yet I find none punished as Traitors upon this, and John Dick, in Anno 1649. For poisoning his Brother and Sister, is only executed, but not Forfaulted, but I believe he has had no Lands to Forfault; nor do I see how a Judge can proceed less severely in this case, than the Law appoints; especially, seeing the Act is so express, that this shall remain as an aye lasting Statute. And the reason why the Law is severer against Poisoning than Murder, is, because no man can defend himself against Poison; and Poison uses never to be given, but by persons who have some Trust, and so is Murder under Trust, which is likewise Treason by our Law, and yet it was only punished Capitally by the Civil Law, l. 1. §. 1. ff. ad L. Cornel de sicar. Though this Act discharges the bringing home of any Poison, for any manner of use; Yet Apothecaries are allowed to bring it home, for their Medecines, and this is likewise allowed by the Common Law, and Doctors; and there is a venenum bonum, as well as malum; and though buying and inbringing of Poison, be declared Treason by this Act, though it be not given; yet by the Opinion of the Doctors, it is only punishable in that case, paenâ extraordinariâ Gothofred: §. venenum. num. 21.  
THis Act against Strangers bringing home Poison, has not been observed amongst us, 
ACT 31.  and it is hard to punish Strangers for a Law that they are not obliged to know; and it appears they cannot be liable, except they be advertised by some Magistrate, that there is such a Law; and that therefore they should carry back these Commodities; and yet if a Stranger should actually give Poison, he would be punishable, though no such Act as this had been made, since every man is obliged to know, that it is unlawful to give Poison.   

King JAMES the second, Parliament 8.  

ACT 36.  EIther it is provided that Wodset Lands shall be Redeemed for payment of ordinary Money of Scotland, and then it must be paid according to the rate the Money gives at the time, when the Redemption was used, and not according to the rate it gave at the time when the Wodset was granted; as for instance, if Lands be Wodset for ten thousand pounds, and thereafter the Money be cried up, so that the Dollar that was fifty six shilling, is to give a Crown; or a Shilling is to give a Mark; in that case, the ten thousand Pounds is to be Consigned, according to the rate as the Money gave, though the Wodsetter paid more Dollars and Shillings, than he is to get back: This holds not only in Redemption, by virtue of this Act, but in all payments, as is clear by Act 19 Par. 3. Ja. 3. and Act 68 Par. 8 Ja. 3. But if the Money to be Consigned, be tailzied Money (that is to say, a specific kind of Money, from the Word Talis) as for instance, five thousand Marks in Rose-nobles, or the like specific kind of Money, then if so much Money cannot be had of that kind in specie, it may be paid in as much of the present current Coin, as will answer to that kind of Money, being of the same value as the Gold and Silver specified in the said Reversion, conform to the Common Law, which the Lords interpret to be payment, according to the price, and value that the said tailʒied Money was worth, the time of granting the Obligation, March 3. 1623.   

King JAMES the second, Parliament 9:  
THis Act discharging the keeping of old Stacks of Corn; 
ACT 37, 38.  and the next Act discharging the Girnaling of Corn, seem to have been Temporary, and the Justices have refused to sustain Dittay upon either.  
THis Act discharging the keeping up of more Victual than will serve a man's Family for a Quarter of a Year, 
ACT 39  and that they shall present the superplus to the Mercat within nine Days, seems likewise to have been but Temporary, because of the scarcity that then was; and at any time of scarcity, the Magistrates of any Burgh Royal are in use, and may lawfully (as some think) break up the Doors of Victual-houses, within Burgh, and ordain the Victual to be sold at competent rates; if the Merchants be either unwilling, or absent; but if the Privy Council be sitting, it is safer to make application to them.   

King JAMES the second, Parliament 11.  
OBser. 1ᵒ. This is the first formal Act of Annexation, 
ACT 41.  and though it bear only, That it shall not be lawful to the King to Analȝie any part of His annexed Property in Fee, heritage, or Franktenement, without consent of Parliament; yet this extends to long Tacks; for it is not lawful to set even long Tacks of the annexed Property, and if it were, than the design of Annexation, might easily be eluded, and the Crown impoverished.  
Albeit this Act declares it lawful to the King, to intromet with any of the annexed Property, without Process of Law; and by the 203 Act Par. 14 Ja. 6. Such as had, or should intromet for the future, by the King's Command, with annexed Property, are secured: Yet by our present Custom, the King uses to Reduce such Rights, and not to intromet with them brevi manu.  
Obser. 2ᵒ. That because this Act bears, That the annexed Property cannot be Dissolved, except by Deliverance, and Decreet of the whole Parliament, and for great seand and reasonable Causes of the Realm; Therefore a Dissolution contained in a Confirmation of the annexed Property, after it is Disponed, is not sufficient, but is Reduceable, since Dissolutions should be specially Read and Considered: Whereas, Confirmations and Ratifications, pass in course without Observation: Likeas, Disposition of the annexed Property, made before the Dissolution, are declared null by the 236 Act 15 Par. Ja. 6. This was so decided, February 25. 1669. The King's Advocate contra the Earl of Mortoun; and by the 13 Act 2 Par. Ch. 2. That Decreet bearing this Interpretation of all former Annexations is Ratified, and it is appointed, That Orknay shall not be Dissolved without the Advice of the whole Parliament, and for great and weighty Causes, relating to the public interest of the whole Kingdom, to be considered before the Disposition, lest by a previous Disposition, the Parliament should be pre-determined in their deliberation; and therefore it would appear, that where there is a Disposition granted before Dissolution; not only is that Dissolution null, as being filius ante patrem; so that it could not make the preceding Disposition to Convalesce, even from the date of the Dissolution: But that a posterior Disposition, relating to that Dissolution, would be null, since by the first Disposition, the Parliament is once pre-determined in the Deliberation; and therefore it would be fit, that such Dissolutions should expressly bear this difficulty, and dispense therewith, per expressum.  
It is here also fit to observe, that Dispositions of Rights, made of annexed Property, in the King's Minority, though Ratified in Parliament, and after the King's Majority, are null; albeit any other Deed done by a Minor, in his minority, is valid, if Ratified in Majority; For though it may be alleged, that the reason of this Speciality is, because Ratifications pass in Course, and the Grounds are not considered, as aught to be in Annexations. Yet the true Reason of the Speciality must be, that it is easy to obtain Ratifications of such null Rights; and therefore the Parliament, to preclude all from seeking them, has declared, That they shall not be valid when obtained; or else, because a lawful Dissolution is pre-requisit, and aught to preceded a lawful Disposition of annexed Property; And therefore, though the Ratification might supply the defect of the prior Disposition, yet it cannot supply the nullity arising from the want of the former Dissolution.  
Obser. 3o. That when any Dispositions are Reduced, the person who took such unlawful Dispositions, must restore the bygone Mails and Duties from the very date of his Intromission; for his Right being contrary to an express Law, he is not bonae fidei possessor nec facit fructus suos. And this Act bears, That the Takers shall refound all Profits, for the time they had the Lands; so that the Possessor has neither the benefit of a possessory Judgement, though he has possessed seven years; nor should such Rights prescrive, being null, and contrary to an express Law, & quod non est alienabile non est praescriptibile; nor doth the Possessor sacere fructus consumptos suos, not being bonae fidei possessor; and yet the Lords shunned to decern such as had intrometted with the Rents of Orknay, liable in repetition of the bygone Mails and Duties, when their Rights were Reduced upon this Act, because it had not been in observance, as some Lords affirmed; and there was a most probable ground of ●gnorance in that case.  
AS the Wardens could not cognosce upon these Crimes, 
ACT 42.  which are called The Points of the Crown; so neither can the Commissioners for the Borders, who are now come in their place. The meaning of the Exception made in this Act is, That though the Wardens cannot generally cognosce upon points of the Crown, i● Treason, Fire-raising, etc. Yet they may, if such a Trial be necessary, for conservation of the Truce: That is to say, if these Crimes be committed by Common Robbers upon the Borders.  
THough this Act discharge any Regalities to be granted otherwise, than by Deliverance of Parliament; 
ACT 43.  yet they are ordinarily granted by Signatures under the King's Hand, and a Defence proponed by the Vassals upon this Act, was repelled by the Exchequer, 1664. at the passing of a Signature, containing a new Erection: But I see not how this could be Repelled by the Lords of the Session; the Act is so express, and so reasonable; for the Erection of a Regality, makes a new Justiciar, who has very great power; and a Lord of Regality is Regulus, a little King, and takes off the People from an immediate dependence upon the King. Likeas, the Lord of Regality gets Right by the Erection, to the single Escheats, which prejudgeth both King and People, and is expressly contrary to the Act 69. Par. 11 Ja. 6. Discharging the giving away the King's Casualties in great, and they prejudge much the prior, and established Rights of Sheriffs, subject the people to more Jurisdictions, and by multiplying Registers, distract and render uncertain all Buyers, and others who are obliged to know the condition of their Debtors, and so much is the King concerned in Erections of such Regalities, that they are expressly Revocked, by all our Kings in their general Revocations. Though by this Act, it would appear, that Regalities ought to be null, if they be not originally granted in Parliament; yet a posterior Confirmation in Parliament is by our Decisions found sufficient, though it may be alleged that Confirmations pass in course, without exact consideration; whereas such Regalities ought not to pass so slightly, since they establish a summar Jurisdiction over the Lives of the Subjects; and such previous Grants do pre-determine the Parliament in their free Voting; and therefore should no more be regarded than they are in the case of annexed Property, vid, not. on Act 41. Supra. and on Act 94. Par. 6 Ja. 1.  
NOtwithstanding of this Act, several Sheriff-ships are granted in Fee since this Act, and therefore are Reduceable; 
ACT 44.  but it is very observable, that though these two Prohibitions fell under the Parliaments consideration at once, yet the Parliament discharged only Regalities, without consent of Parliament, but they discharged heritable Offices simply, as tending for ever to fix the dependence of a whole Shire upon an Subject; whereas Regalities are only over a man's own Lands, or his Vassals; But Sheriff-ships are over other men, and were it not for this, it may seem that the first Act concerning Regalities, was unnecessary, since this Act would have served for both, vid. observe. on the Act 4 Parl. 18 Jac. 6.  

ACT 45.  THe Rubric and Body of this Act being compared, makes Theft to be capital; for the Rubric bears, That Sornars shall be punished by Death; and the Act says, That Sornars shall be punished as Thiefs; therefore Thiefs should be punished Capitally, but we have no positive and specific Law for punishing Theft Capitally.  

ACT 46.  ORdinary Actions within Towns, are not Judged now by the Counsel of the Burgh, as this Act requires, but by the Bailies.  

ACT 47.  THis Act, as to the Habit of Members of Parliament, is in Desuetude, for the Dukes, Earls and Lords, wear all Scarlet Cloth, with Bars of Ermine; the Duke has five Bars, the Earl four, and the Lord three, and the Burrows have no special Habit.  
The Fore-speakers for Cost, here mentioned, and who are to have Green-habits, were the Advocats, who were allowed to Plead before the Parliament, and this Habit for them is in Desuetude, for they Plead before the Parliament; without any Gown, or special Habit. They are called Fore-speakers for Cost, because they may speak for Money; and Advocats in our old Journal-Books, are still called Prolocutors, or Fore-speakers; But Friends are also in the Journal-Books, called Prolocutors; and therefore Advocats are here distinguished from them, by the words Prolocutors for Cost.   

King JAMES the second, Parl. 12.  

ACT 48.  THe meaning of this is, that Bonfires (called here Bails) be made at several places, to forwarn the people of the approach of the Enemy, this is here called Taikening.  

ACT 49.  THough where Treason is committed, the Committers are to be imprisoned, and cannot be let out upon Caution, because the Crime is not Bailable; yet where there is only a presumption of Rebellion, though it may be violent, the party may be let out upon Security, for else a person might be punished without probation; for Imprisonment is a severe punishment. Likeas, by the lib. 4. R. M. cap. 1. num. 3, 8, 9, & 11. It is there said, That he who is accused of Treason, may be let out upon Caution, and if he want Caution, he is to be imprisoned: And yet by this Act, it is appointed, that persons slandered, or suspect of Treason, shall remain in Firmance till they be tried by an Assize, and this last is now in use; But there must still some previous Trial be taken, by Precognition and Examination, before any man can be Imprisoned, or his goods secured for Treason, it being most unjust to use such severities, without very good ground.  
Because this Act of Parliament says, That if persons be slandered for Treason, they shall be ta'en, and their persons warded therefore. It was given as an Instruction by the Council to the Circuit Court 1683. That such as compeared and desired to go to the knowledge of an Assize, might be Bailed, and let out upon Caution because this Act struck only against such as would not appear, but needed to be taken; and yet this is not universally true, for if there be good grounds from a previous Trial by two Witnesses, to suspect the person guilty, it is not just to admit Caution, and the true speciality upon which the Council founded that Resolution, was, because above four thousand were delated in that Porteous Roll for Treason, and it was almost impossible to Imprison all.  
The Acts 50, 51, 52, 53 are abrogated by the Union of England, 
ACTS 50, 51, 52, & 53  and so is the 56; but though they be abrogated, yet the following Observations may be made from them.  
Obser. 1ᵒ. From the Act 52. that the supplying the Scottish Towns, then under the Command of the English, is declared Treason, as is in general, the assisting of all Enemies to the State, vid. Ja. 1 Par. 13 cap. 141. Ja. 2 Par. 12 Act 50. For though we have no special Statute, declaring the assisting of Enemies of the State to be Treason; Our Acts running generally against such as assist declared Traitors, or assure with English men in particular; yet it is Treason by the Common Law, l. 3. ff. ad l. Jul. Maj. And such of our Nation as continued in the Dutch Service, during the War with Holland, in anno 1666. were forfaulted as Traitors.  
By the second part of this Act, it is declared Treason, for any who ride with the Warden of the Marches, or any other Chiftain, to go away with any manner of Goods, till they be thirded, that is to say, till they be divided: for one third, by the Law of the Borders, belongs to the King; a second third to the Warden, or Chiftain; and a third to the Apprehenders: For understanding whereof, it is fit to know, that Lands, when taken from Enemies, become the Kings, or the Commonwealths, by the Laws of all Nations, but Movables by the Law of GOD, Deut. chap. 20. vers. 14. Josh. chap. 8. vers. 1. when taken, were divided equally amongst the Takers: But sometimes there was a Division, the one half falling to such as Fought; the other, to these that stayed with the Baggage; and a fiftieth part of their part, who Fought not, was dedicated to the LORD; whereas one of five hundred was only Consecrated out of their part who Fought, Num. 31. verse 50. At present Grotius distinction, lib. 3. de jur. Bell. c. 6, 11, 12. Is generally observed, whereby if Movables be taken by a party led on by an Officer, who only knew the design, than the Soldiers get no share, but all falls to the public; but if the Movables be taken in Excursions, or free Adventures, they belong to the Takers: And Voet. c. 5. n. 19 de jure milit Sets down the several proportions, whereby Goods are divided amongst a Party and Officers in Holland; where, if the Party exceed 50. the Captain gets a tenth, the Leiutenent a fifth, the Ensign a third, the Quartermaster a double portion, the Sergeant one and an half, and each Soldier a single share; but still the Horse get double of what is due to the Foot.  

ACT. 53.  BY this Act, which is a continuation of the former, it is declared Capital, for any man to take from another, Goods, or Prisoners, which they are in Possession of; from which it is observable in War; that Possession or Capture giveth only right thus, Inst. de rer. div. Par. 17. It is said, Item quae ex hostibus capiuntur statim jure gentium capientium fiunt; and therefore a Ship being pretended to belong to the King, because one of the King's Friggots had beat the Convoy that Guarded her, and was in pursuit of another, and had taken both her and this Ship, here controverted, if the Privateer had not interveened, and it being answered, that an actual Capture could only establish the Property; and this Statute required Possession. The Lords before answer, granted mutual Probation, for trying whether this Ship could have escaped from the Friggot, if the Privateer had not taken her.  

ACT 54.  IT is Treason to raise a Fray wilfully in the King's Host, for this wilfully done, shows a Design to ruin the Army, and I find that the Master of Forbes was Hanged for raising a Fray in the King's Host at Jedburgh, July 14. 1537. The words without Cause, are added here, because if a man doing his duty was the occasion of raising a Fray, he ought not to be punished, as if an Officer punishing a Mutineer, should by that occasion, raise a Fray; this would not be punishable. By the Civil Law, such as were Authors of Sedition in an Army, (for a Fray is properly Sedition) were punished as Murderers, l. 3. §. 4. ff. ad l. Cornel. de sicariis; But if the Commonwealth was in danger, they were punished as Traitors, as in this Statute, and in l. 1 ff. ad l. Jul. Maj. and they are every where now punished by Death, Sand. Decis. 165. tit. 9 des. 12. vid. Voet. de jure milit. c. 4. num. 40. And if the Authors cannot be known all involved in the Gild, are forced to cast Lots, Voet. ibidem. Sometimes also, if the Sedition was carried on, sine gravi tumultu & intra vociferationem, the guilty were only Cashiered l. 3. §. 20. ff. de re militi; if the Tumult was raised upon private picques or grounds; but if it was raised upon prejudices against the Commonwealth, or Prince, it was punished, even in that case, and though no actual prejudice followed, as Treason, d. l. 1. ff. ad l. Jul. Maj.   

King JAMES the second Parliament 13.  
THis putting the Kingdom in a posture of Defence, 
ACT 56.  was formerly ordained, Stat. Will. cap. 23. Stat. 1. R. 1. cap. 27 But all these Acts are now in Desuetude; and the Act concerning the Militia, is regularly come in their place; but yet the King may call for either, vid. observe. on 4 Act 1 Par. Ja. 1. By the King's Letters, by Bailis is meant Letters to raise Fire or Takening for advertising the Country. By Out-hornes, is meant these who followed the Sheriffs, and whose Office it was to raise the King's Horn, for warning the Country to assist the King's Officers.  
THis Act contains what is fit to be done in time of Pestilence, 
ACT 57  and because it was an Affair to be Governed by Christian Charity; therefore the Regulation of it was referred to the Clergy; and upon this account it is, that the Act says, The Clergy thinks, without speaking of King or Parliament, it being ordinary in our Acts of Parliament, to set down the report, without drawing it into the formality of an Act of Parliament, and thus in the 91, and 92 Acts, Parl. 13 Ja. 3. It is said, The Lords thinks it expedient, by which word, Lords, must be interpreted Lords of Articles  
THere was of old Distresses taken from such as came to Fairs, that is to say, 
ACT 59  some thing was taken to be a Surety for their good behaviour, and was delivered back at the end of the Fair, if the Owners committed no wrong, during the Fair.  
THis Act is only to be interpreted of the Fees due to the great Constable of Scotland, who is now the Earl of Errol, 
ACT 60.  for he only can exact, during the time of Parliament; but yet that Exaction by him at Fairs, in time of Parliament, is in Desuetude; and other Constables have Fees, which they exact in time of Fairs, by special Infestment, as the Constable of Dundee; and it is observable from this Act, that a long Custom of exacting Fees and Customs from the people, is not Warrantable, except either that old Custom be founded upon an old and express Infestment, or warranted by an Act of Parliament.   

King JAMES the second, Parliament 14.  
SPuilzies are here divided in Spuilyies of Movables, and Spuilyies of Fee, or heritage; 
ACT 61.  but that improper way of speaking is, not now used, for the Dispossessing a man out of heritage, is called Ejection and Ejections, are now pursued before the Lords, as ordinary Actions, but not in the special way here prescribed. That Maxim of Spoliatus ante omnia restituendus, extends to Spuilyies, of both Movables and heritage.  
ALL those Forms of Process are to be considered at the Institution of the Session, 
ACT 62.  by King James 5 th'.  
By this Act Appeals to King or Parliament, are utterly discharged; But the Question is, whether only Appeals stopping execution, be hereby discharged: and it is alleged, that Appeals were only discharged here, because the Session was then a Committee of Parliament, and there lies no Appeals from the Parliament; but it seems there is likewise no Appeals from the Session, as presently Constituted, because they are invested in all the privileges the former Session had, and that the 99 Act Parl. 6 Ja. 4. allowing Appeals, after this Act must only be interpreted of Appeals from inferior Judicatures; but even these are also in Desuetude: Whether Protestations for remeid of Law, be allowable, notwithstanding of this Act, was Debated in Anno 1674. and the King determined by his Letter in Anno 1674. That they were not to be allowed to Advocats, nor Parties, after the Lords of Session's Decisions; albeit it was alleged then, that by an Act of Sederunt, in Anno 1567. Protestations for remeid of Law, were expressly excepted in the Act discharging Murmuration against the Lords; and that Lethingtoun, Balfour and Hope, in their Practics, Tit. Lords of the Session, do express these as allowable; nor are they discharged expressly by these Acts; and though neither Appeals to the Parliament, nor Protestations for remeid of Law, before them, be not now to be practised by Parties, or Advocats; yet it is not yet decided, how far the Parliament may Rescind the Decreets of the Lords; and though they might, yet it was urged, that it is not fit they should, since Parliaments may seem more subject to passion and factions than the Session, great men have too much influence there: and by these, and such Appeals, the sitting of Parliaments would be very much lengthened; and because their sitting is uncertain, the Sentences of the Lords could not be acquiesced in as a Security, and all Pleas would be thereby both endless and expensive, and there is as great reason for discharging Appeals to King and Parliament, as there was at this time; for the Lords then, though a Committee of Parliament, were not more Learned than the Session now; and upon these considerations the Parliament, 1661. Did by a Letter to the King, in a case betwixt Sir Thomas Hamilton and Alrud, declare that there could be no Appeal from the Lords of Session.  

ACT 66.  THis Act against Litsters, buying and selling Cloth, is extended so by the 12 Act Parl. 2 Ja. 3. That no Craftsmen may use Merchandise; and the reason of this Law is, because if they were allowed to buy, they would make none, and so neither improve themselves, nor the native Commodities of the Kingdom, this Act is renewed by the 47 th' Act 1 Sessi. 1 Parl. Ch. 2 d.  
EVery Merchant must Sail with at least, three Serplaiths of Goods, and the Serplaith contains 80 Stone of weight, 
ACT 67.  but by the 13 Act Parl. 2 Ja. 3. It is appointed, that no man Sail without half a Last of Goods, which was introduced, because peddling Merchants having very small Stocks, were both a discredit to the Nation, and were also forced to sell at any rate, for they could not wait for a price; but now all such Acts are in Desuetude.  
Obs. That by this Act it is appointed, that none Sail or Trade but free Burgesses, which is restricted by the 11 Act Parl. 2 Ja. 3. In which it is declared lawful for Prelates, Lords, Barons, and Clerks, to send their own Servants; and by the 5 Act Parl. 2 Ch. 2 Sess. 3. It is declared lawful for Indwellers in burgh's of Regalities, or Baronies and others, to send abroad Corn, cattle, Neat, Hydes, and all the Native Commodities of the Kingdom.  
IN all Acts for visiting Hospitals, the Chancellor is still one; 
ACT 69.  and though by this Act, where the foundation of Hospitals cannot be found, the Remeid is referred to the King; Yet by the Act 10 Parl. 1 Ja. 3. It is appointed, that where the Foundation cannot be found, the Rents shall be bestowed upon the Poor. By the Canon Law, Hospitals are not Benefices, and yet the care of them belonged to the Bishop, tit. 10. quest. 2. vid. not: on Act 27 Parl. 2 Ja. 1. Supra.  
THis Sumptuary Law is in Desuetude, 
ACT 70.  by Muzzling of Women here is meant, being Masked.  
FEues being free and gratuitous Donations, bestowed for Service, 
ACT 71.  it was just that the Vassal should not have liberty to sell without the consent of the Granter, for else others might be obtruded upon him as Vassals, and he might want the service of that Family, which he particularly chus'd; but yet the Feudal Law allowed the Vassal to grant a Sub-feu, which though it may seem a kind of Alienation, yet was allowed by that Law, lib. 2. tit. 3. §. Sed etiam. Because in Alienations, the Superior would have lost the Service of the first Family, and would have had but one Vassal; whereas in Sub-infeudations, the first Vassal must still remain Vassal, and be liable to all the Casualties and Services, and the Superior gets likewise another Vassal, viz. the Sub-vassal, a Sub-feu being likewise but Emphiteusis, the Sub-vassal is but in effect a Tennent; and therefore by this Act of Parliament, the King declares, that for better cultivating and labouring of the Kingdom, he will allow all his own Vassals to set their Lands, which they hold immediately of him in Sub-feu: and it is declared, that this Act shall be equivalent to a Confirmation. And these Sub-feves are by this Act only called Assedations; and are by the 9 Act Par 6 Ja. 4. ordained to be Set for the Policy of the Realm; because, as I conceive, the King's Vassals being thus freed from the Labouring of their own Lands, they might be the abler to serve the King in his Wars; and the Land likewise be the better Laboured, by these Sub-fevars, who could attend the Labouring thereof. Upon which Words, Our Sovereign Lord, shall Ratify and approve the said Assedation. It was Debated, whether a Sub-feu, set by virtue of this Act, did fall under the Forefalture of the Vassal, though it was not Confirmed in the Person of the Sub-vassal; and it was alleged, that the Sub-feu could not be quarrelled; because the King by this Act, having invited men to take Sub-feus, it was not just, that the Invitation given by a public Law, should become a snare; and having promised to ratify and approve the Sub-feu, that promise being insert in this public Law, was equivalent to a Confirmation; and therefore should defend against a Forefalture, as well as a Confirmation could have done; and though these Words were alleged only to import a promise to Ratify, which did imply, that application should have been made for a Confirmation. Yet to this it was answered, that this was an Invitation, and the Words subjoined thereto, must therefore be considered as a present Approbation, especially, seeing there is no time prefixed for craving of a Confirmation, nor any irritancy annexed to the not craving thereof.  
It was likewise urged, that by the 91 Act Parl. 6. Ja. 4. This Sub-feving should be no cause of Forefalture; and that since this Act would defend against Ward and Recognition, it should much more defend against Forefalture upon Treason, for that being a most personal crime, of which, not only the Sub-vassal is innocent, but ofttimes concurs with the King, against his own Superior; the poor Sub-vassal ought therefore to be less troubled upon it, than upon Recognition, to which the Sub-va●sal himself is somewhat accessary, because he receives the Right, upon which the Recognition is inferred.  
And whereas it was urged, that by the 37 Act Parl. 2 Ja. 6. The Sub-vassals of the King's Vassals, who were Forefalted at that time, are secured, if themselves were innocent; which Act had been unnecessary, if this Act had secured them, and that Act is declared to have been only Temporary, & pro eâ vice, by the 201 Act Parl. 14 Ja. 6.  
To this it was answered, that by this Act, such Sub-feus are only allowed, as are set for the just avail, and all other Feus' might have been quarrelled; and therefore that Act was made to secure the Sub-vassals of Forefalted Persons, whose Rights might have been quarrelled upon that head, or else that Act has been made ad majorem cautelam, and to prevent all debate, which is most usual.  
Upon this Debate the Lords found, that this Sub-feu fell not under the Forefalture, this general Law being equivalent to a Confirmation, February 12. 1674. Marquess of Huntly contra Cairuburrow.  
It has also been Debated, whether Wodsets Feued out are secured against this Act, as well as Lands irredeemably Disponed, and I think they are, since a Wodset Right is as properly a Feu, as an irredeemable Right.  
What is meant in this Act by the competent avail; for which Ward Lands may be feued, is dubious, but the just avail, for which the King's proper Lands may be feued, is by several Acts of Parliament, declared to be the Retour-dewty, or new extent; and therefore I think that the competent avail here, must also be interpreted to be the Retour-dewty, and in January 1680. betwixt the same parties, it was found, that though the competent avail be the Retour-dewty, expressed in his Service; yet the Sub-vassal getting a part of the Lands feued to him, he ought to pay no more for the competent avail, but his proportion of his Superiors Retour-dewty▪ and that if a Charter was given him blank by his Superior, which he filled up himself with a special Reddendo; the Charter was not therefore null, and he was only liable in his just proportion of the said Retour'd-dewty, and the Vassal, if he pleases, may by a Process against his Superior, get this competent avail, to which his share should extend, determined, and that being specified in his Service, will thereafter become his Retour-dewty, though ordinarily the Sub-vassal, to prevent expense, or by mistake uses to Retour the Duty that was payable by his Superior, especially if the difference be not great.  
THe punishment of such as abuse the power of their Jurisdiction of Regality, is left arbitrary by this Act. vid. c. 14. Stat. Rob. 2. 
ACT 72.   
THis Act is Explained in the 96 Act 6 Parl. Ja. 4. 
ACT 73.   
BY this Act all Remissions are null, 
ACT 74.  except the Party injured be Assythed, and he who produces the Remission, must either find sufficient Caution to pay the Assythment within forty days, or to stay in Prison till the payment, and by the 155 Act 12 Parl. Ja. 6. and 136 Act 8 Parl. Ja. 6. It is provided, that if the Remission contain not an Assythment expressly in the body of it, the Remission shall be null; but because these Acts were Temporary, therefore by the 174 Act Parl 13 Ja. 6. If any Remission or Respite be granted, before the Party injured be first satisfied, the Remission is to be null; and though by that last Act, it would seem that an Assythment subsequent to the Remission, would not make the Remission to convalesce; because that Act requires, that the Remission shall be null, as said is, yet the meaning of that Act seems only to be, that without an Assythment the Remission shall be null.  
From the same Act, exception is made of Remissions granted, for quieting the Highlands or Borders, which may be valid without Assythment, Gratiâ factâ a princip● nocenti non valet nisi pax sit prius habita ab haeredibus offensi, which we call a Letter of Slains, vel nisi fiat reparatio damnorum, Plot. council. 78. Clar. Quest. 58. num. 40. ubi traditur posse Regem tamen gratiare nocentem sine pace privati, quando damnandus elaborasset pro bono reipublicae, vid. l. non omnes §. fin. ff. de re milit.  
The second part of this Act relates to Remissions, for Spuilyies or Theft, as to which, the Lords of the Session may restore the Party, and Assyth him, notwithstanding of the Remission.  

ACT 75.  By this Act, no Freeholder can be forced to come to Parliament, except he hold a twenty pound Land of the King; but none can be now compelled, and this was only in the time when all Freeholders' were obliged to compear in Parliament, as the King's Head-Court, nor can any now Vot in the election of the Commissioners, except they hold a 40 shilling Land of the King immediately, or hold ten Chalders of Victual, or a 1000 pound (Feu-dewty, all deducted) off a Bishop, or Abbot formerly, and hold the same now of the King, Act 35 Par. 1 Ch. 2. But now again, since the restitution of Bishops, the Bishops represent their own Land in particular, and so their Vassals are not allowed to sit in Parliament. vid. Act 21 Par. 3 Ch. 2.  

ACT 76.  THe negligence so severely punished in Judges by this Act, must be negligentia dolosa & supina, and the distinction here observed, betwixt the punishment of heritable Officers and others, is ordinary amongst the Doctors, Bald. ad l. 1. ff. de seru. fugitiv. where he says, that pro negligentia Judex removetur ab officio sed hoc non tenet in judice perpetuo Farin. Q. 3. num. 423. says, that Majores Officiales non removentur, sed minores facile removentur, by th● cap. 14. Stat. Rob. 2. A negligent Judge, viz. a bailie of Regality is to be punished by escheating his Movables, and their life is to be in the Kings will.  
A faulty Judge is also punishable by this Act, in the same way as a negligent Judge, which must not be meant of the meanest fault, seeing the punishment is so great; but whereas by this Act the punishment is the loss of Office for ever, if it be not heritable; yet by the 26 Act Parl. 5. Ja. 3. The heritable Officer lose● his Office for three years; whereas this Act bears, this being lawfully proved, and notorly kend, we must not conclude, that a Judge may be convict upon this notoriety without probation, for these two are only exegetick of one another, and the sense is, they being convict upon notor probation, Vid. supra observe. on Act 16 Parl. 6 Ja. 2.  

ACT 78.  THe Form now to be followed in case any man should masterfully possess another man's Lands is, that if violence was used at the entering, than the Council upon a Complaint, will restore the party dispossessed; but if the Intrant entered in vacuam possessionem, though without any Right, he behoved to be pursued before the Session, by an action of Intrusion.    


K. JAMES III. Parliament I.  
BY this Act, 
ACT 2.  the third of the KING'S Rents of Assize; that is to say, the third of His Lands and Customs, belong to the Queen as her Dowry, 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 provided, if she be not expressly secluded from it by her Contract 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 other Write, she will be secluded from a Terce, except her Terce be expressly reserved to her by and attour the particular Provision.  
Nota, The Rents of Assize, comprehends the King's Customs and Lands, as was found, Decemb. 9 1466. and March 11. 1500. Ogilvie contra Grace.  
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 itself, 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 conceived, as this Act is, in these Terms, The Dowry 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 Customs, but that being by express paction, derogats not from this Law.  

ACT 3.  SOmetimes Benefices Ecclesiastic, were bestowed upon secular persons, who were called Commendators, because the Benefice was commended and entrusted to their oversight, and they were Procuratores in r●m s●am & habebant tantum detentionem & poss●ssionem; but were not Proprietars, and so could not Dispone, Roman. Council 350. And because Commendators were but Trusty's or Tutors; Therefore Rights made by them, though with consent of the Chapter, are no longer binding in our Law, than during the Commendators own Right: And by this Act, these Commendams are discharged, and yet the Deeds done by them, are not annulled; and therefore many Rights made by Commendators since this Act, are sustained as valid, though they were not Proprietars.  
By the Canon Law, only the Pope could grant commendam perpetuam, and the Bishops could only grant Commends for six Months, c. Nemo. Elect. l. 6.  

ACT 5.  THe pain of Lawburrows here expressed, is heightened 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 Freeholder, a thousand marks; every Fewar, five hundred marks; the un-landed Gentleman, two hundred marks; and the Yeoman, one hundred marks, which last Act is now observed: and though Penalties be expressed here, against breakers of Lawburrows, found to Churchmen, and that there be no mention made of them in the last Act, yet an Archbishop, or Bishop, can pursue now for the same penalty that is due to an Earl: and Bishops and their Wives are allowed the same Solemnities at their Funerals, that are allowed 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 privilege granted to Earls, is extended to them.  
2 o By this Act, the Penalty is to be applied to the King, and is due by and attour the Reparation due to the person lesed; but by the last Act and the present Custom, the Penalty is to be divided betwixt the King and the Party, and though by this Act the Master is free, if he present his Servant, who breaks the Lawburrows. Less than the Lawburrows; that is to say (he who found the Lawburrows) bring the Trespassors to the King or Sheriff, within forty days, Dominus noxali judicio servi sui nomine conventus servum actori noxae dedendo liberatur; yet by our present Custom, the Master finds Caution, that the Raiser of Lawburrows shall be skaithless from him against whom it is raised, and his Men-Tennents and Servants; and therefore the Master seems now liable, though he should present his Servants.  
Albeit these be the ordinary Penalties allowed, where there is no other proof of the Danger, than the Oath of the Complainer; yet if the Complainer prove threatenings, the Council or Criminal Court, may ordain surety of Lawburrows, 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, 
ACT 6.  all Summons are to be on twenty one days Warning; yet all Summons that are privileged by their own Nature, or the Lord's Deliverance, come in upon six days. vid. Hope Form of Process; and by an Act of Sederunt, July 21. 1672. It is declared that no Actions can be privileged, except Remove, recent Spuilyies, recent Ejections, Intrusions, succeeding in the Vice, Exhibitions, Causes alimentary, Summons, for making forthcoming, Transferring, Poynding of the Ground, Walkennings, special Declarators, Suspensions, Prevento's and Transumpts, all which, and all second Summons in all Actions, are to come in upon six days warnings, except recent Spuilyies, because by the 65 Act Par. 6 Ja. 4. these were to come in on 15. days; Ejections, Intrusions and succeeding in the Vice, which are of the nature of recent Spuilyies: But since this Act appointed all Summons to come in upon 21. days; dubitatur, how the Lords could have privileged any Summons upon fewer days, though there was an old immemorial Custom for this, prior to this Act of Sederunt; and it will be fit to Ratify this Act of Sederunt in the first Parliament.  
By that Act of Sederunt likewise, second Summons may be executed 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. 
ACT 7.   
MOney is yet escheated to the King and his Customs, 
ACT 8.  if taken out of the Country without a Warrant; but that part of the Act which allows a Noble for every private man's expense, is in Desuetude for now every man is allowed to carry out what may defray his Expense; 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 having carried out Money, and his having carried out, and the quantity may be proven by his Oath. We see also in this Act, that Seculars could not Judge ecclesiastics, for ecclesiastics were to be Judged by the Official, that is to say, the Bishops Judge, in whose place the Commissars are now come, and this privilege descends to Churchmen from the Canon Law, c. 2. de judiciis: But since the Reformation, this Privilege fell, for now all men whether Secular, or Ecclesiastic, answer to the Civil Judge.  
The great reason why our own Coin should not be carried out is, because our Money is finer nor foreign Money, being eleven denier fine, and so is constantly Exported, and being melted down into foreign Coin, is brought home again to us, at a greater extrinsic value; but yet because it might be doubted if this prohibition extended to the carrying out of all Money that is current, or if that which is not current may be carried out▪ such as Ryals, etc. For the carrying out of Gold and Silver, is generally ordained 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, Coined or Un-coyned, 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.  

ACT 11.  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 liable 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 Majesty, the Custom of all Goods, exported or to be imported, as is clear by the 251 Act 15 Par. Ja. 6. The Words being, That His Majesty, with consent of the Nobility, Council and Estates; have ordained that all Cloth, and other Merchandise, brought into this Realm, shall pay Custom, etc. And therefore the King being, as to this, founded in the Rule, all must be liable, 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 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 England, and France, the Nobility, Barons and others, pay Customs for all imported Goods.  
The Customs being granted for the Defence of the Kingdom, and the Support of His Majesty's 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 Country, that has no Consumption, for imported Goods, save within themselves, if the Nobility and Gentry should not pay, they might bring home all their own Commodity's, and so there should be little or no Customs due to the King.  
They might colour the Trade of Merchants, by granting simulat Commissions, for bringing home, the Goods of Merchants, under their names, which would occasion much Perjury, and at least put the Customers to a Process, and Suspend the payment of the true Customs, till that were cleared by Process.  
When this Kingdom thinks fit, to guard against the importation of any foreign Goods, they do this by imposing great Customs, as was lately done by imposing 80 per cent. upon all English Cloth. But so it is, that if this exemption were allowed 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 Manufactories, could never be encouraged, nor could we force other Nations, justly to balance their Trade with us, or keep our Money within our own Country.  
If these Exemptions were allowed, there could be no possibility of lessening and curbing the Luxury of the Nation; For the Nobility and Gentry, might still wear what they pleased, at least it would be an encouragement to them, to bring home things superfluous, they being free from Impositions, whereas their being burdened with Custom, would discourage them to bring home superflueties.  
The Exchequer has in their Tacks been in use to set the Customs with express order, to allow no exemptions, and the Customers have exacted Customs from the Nobility and Gentry, which proves the King's Possession, and the acquiescence of those, who plead the exemption.  
Whereas it is pretended, 1ᵒ. Customs are regularly a Duty, imposed upon Merchandise and Traffic; But what Noblemen and Gentlemen, import for their own use, is not Merchandise, nor Commerce. 2ᵒ. 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 imposed for the uses foresaid, the payment should be regulated, by the reason that imposed the Imposition, and not by the nature of the Traffic; 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 consume for their own private use. 2ᵒ. 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 2 d it is answered, that 1ᵒ. There is a great difference in our Law, betwixt these, persons being free to Trade, and so not liable 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 urged, that the first part of that Act having imposed 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 Cautelam and should never be extended beyond the Terms of the Reservation. But so it is, that the Reservation is not conceived absolutely, 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 Customs, it must be restricted to the privilege of their b●ing free, from the pains of un-free Trading only. 2ᵒ. It is to be considered, that the former Laws, allows them only the liberty from being punished as un-free Traders, as to what they import by their own Servants, for their own private 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 Barons, from inland Customs, due to Subjects. 3o. The time of that Act, the Customs were justly imposed, upon exported Goods, But thereafter His Majesty was graciously pleased, to lay the greatest 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 imported Goods should be both free. Likeas, so convincing was this Argument, that albeit some shadow of an exemption, was subjoined, 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 privilege, but only says, that the Regulation of the differences, betwixt the burgh's Royal and burgh's of Barony, introduced by that Act, shall be but prejudice, to the Noblemen, Prelates and others, of their privilege of importing any of the Goods, allowed to be then imported, 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 Restricting or innovating any thing, with relation to Custom or Excise.  
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 uncontroverted Right in the Customs, for the enriching these who controvert this his Right, by consenting at their desire to discharge, more imported Goods, than would pay him more Customs than he can expect from these not exemed.  
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. Gimnas. 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. 
ACT 12.   
VId. Annot. Act 67 Par. 14. Ja. 2.  
OBser. 1ᵒ. This Act appoints all Ships to have Chartor Parties, 
ACT 13.  and because there was no penalty against these, 
ACT 14.  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. 2ᵒ. That though it be said in this Act, that when any Debate happens betwixt Master and Merchant, that they shall underly the Jurisdiction, and Ordinance of the Burgh, to which the Ship is fraughted, without any exception; yet by the Custom now observed, such Pursuites may be intented against the Defender, wherever he dwells, or before the Lords, even in the first instance.  
Observ. 3o. That though by this Act it be ordained, that no Merchant Goods be riven or Spilt, with unreasonable stowing, or the Master's fault, under pain of tinsel of the Fraught, and amending of the Skaith, yet the Skipper is liable, 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 locator 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 allowed, Merchants could have no Security, for they were neither obliged to know, nor could they prove the secret frailties of Ships, November 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 Desuetude: And by the Chaplain of the Nation, here is meant the King's Almoner, which was to be given to him for the use of the poor, for in the next line it appoints 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 King's Deeds, is meant the Director of the Chancellary: the Chancellary being called in all our old Writs, Capella Regia.  

ACT 16.  BRuges was the first Staple of this Nation, but it's discharged by this Act, to be the Staple for the future, and our Ships are allowed 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 entering into Wars▪  

ACT 17.  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 commonwealth, allow some Goods only to be sold at particular places, and these are called Staple Goods; and the place is called, the Staple Port, Jus stapuli est potestas sistendi in suo foro restringendique 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 privilege of Staple, is not competent, except it be specially granted, and Strangers as well as Natives, may be forced to observe that privilege, 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 discharged, was because our Vessels were small, and our Seamen ignorant, so that many perished by Winter Voyages.  
ARe Explained in the Acts 67, and 68, 
ACTS 18 & 19  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. 
ACT 20.    

King JAMES the third, Parliament 4.  
THis Act is conform to Iter: Camer: cap. 30. And the last Act ordained to be put to Execution by this Act is Act 73 Par. 14 Ja. 2. 
ACT 23.   
THis Act is in Desuetude, 
ACT 25.  for it is now lawful to carry any kind of cattle out of the Country, without hazard of Confiscation. 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 JAMES the third, Parliament 5.  
VId. Act 76 Par. 14 Ja. 2. But it is to be observed from these words, 
ACT 27.  in this Act It shall be lawful to the King's 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 judged 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 King's 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 Judged 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 opinion, 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 according to the Forms of that Court, where it should have been decided; and therefore if He be to Try a Criminal, the Panel will be allowed to hear the Witnesses Depone against him, and the matter of Fact will be judged by an Assyze. If it be alleged, the meaning of this Act is only that the King may Try any Action He pleases in His Council, that is to say, His Session, (for of old, the Session was called His Council, and yet they are called His Council and Session) To this it may be answered, this A●t appoints that Causes should be first Tried 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 induced some to urge, that the absence from the Host could not be pursued before the Council, though the punishment was restricted to an arbitrary punishment; for which they brought these Reasons: 1ᵒ. That this would confound the nature and limits of all the Judicatures, which are the great foundations of our Law, and which is contrary to this Act. 2ᵒ. It is the great security of the People, that when they are Tried for Crimes, they should be judged, not only by the learned Judges, as to Relevancy, but by their Peers, whom they may judge again as to the Probation. 3o. Advocats are to be heard before the Criminal 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 Panel. 4ᵒ. Before the Council the Crime may be referred to Oath, which is not suitable to the Criminal Law, even where the punishment is arbitrary, except the Party be by Act of Parliament, obliged to Depone, as in the case of Conventicles. 5ᵒ. There are no Exculpations before the Council, which are necessary in Crimes. 6o. Several Acts of Parliament appoint, that cases may be pursued before the Criminal Court, or Council, when that is intended, and which were unnecessary, if all Causes might naturally be pursued before either.  
It being likewise Debated from this Act, that a Judge for giving an unjust Decreet, might be pursued before the Council in the first instance for oppression, the Council did in January 1682. find, that a Sheriff, or other inferior Judge, could not be pursued before the Council, until his Decreet were first reduced before the Judge ordinary, and that because the 105 Act Par. 14 Ja. 3. Appoints all Actions to be first pursued 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 inferior Judges; and if this were Sustained, the Privy Council should become the Session, nor would any man be a Sheriff, since he might every day be pursued before the Council; And whereas it was pretended, that the Council were Judges to Oppression, and there might be great Oppression committed by inferior Judges, sub sigurâ judicij. It was answered, That when the Decreet was Reduced, they might then be punished as oppressors, 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, 
ACT 28.  were but new Inventions in Anno 1469; and Reversions were only personal, and did not oblige singular Successors before that Act, but by this Act they affect singular Successors, providing they be Registrated. And though this Act speak only of Reversions; yet elk to Reversions, and obligations to grant Reversions, are also real Rights, if Registrated. 2ᵒ. A Reversion, though not Registrated, is by our Law valid against singular Successors, if it be Incorporated, and contained in the body of the Wodset itself, for then the singular Successor must know the same, since it is Incorporated in his own Right.  
BY this Act personal Rights are ordained to prescryve, 
ACT 29·  if no Diligence was used thereupon within forty years, as heritable 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 signify only Bonds and Contracts; yet this Act extends to Testaments and Decreets, July 26. 1637. and this prescription is also extended to all personal Actions for Movable 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 Citation upon an Action interrupts, July 6. 1671. Mcrae contra Mcdonald: and payment made by the principal Debtor, interrup●s as to the Cautioners. It is observable, that Prescription upon this Act, runs not against Minors, & contra non valentes agere, though neither of these are excepted in this Act; because these Exceptions are warranted by the Common Law, and it may be alleged, that it runs not against furious Persons, since they are in all things compared to Minors, albeit there is this difference, that a man may feign himself to be furious, to the end Prescription 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.  

ACT 30.  IT is pretended that this Act is in Desuetude, and that Magistrates 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 sometimes there are few to be choosed, as in small burgh's, and in great burgh's a forced alteration might prejudge the Towns Interest, because there are few worthy to be Elected in these little Towns, and the Lords inclined to this Gloss, in the Town of edinburgh's 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 placed above Bailies, it comes from the Saxon Word Ealdor Senior, thus we say for age, or for eeld.  

ACT 31.  NOtars are now only chosen by the King's Authority, and are Examined by three Lords of the Session, and get their Protocals 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 signed by them, that they are Notars of such a Diocie.  

ACT 32.  BY this Act all woollen Cloth is to be met by the Rig, and not by the Selvedge, but by the 43 Act 1 Par. Ch. 2. Linen Cloth is ordained to be taken up by the Selvedge, and not by the Rig; because woollen Cloth stretches, when measured by the Selvedge, but the Selvedge of Linen hinders it to stretch.  
THough this Act appoints only heritable Sheriffs, or Sheriffs in that part, 
ACT 33.  that is to say, any ordinary person who executes the King's 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 Executions to be only null; yet by that Act, such as omit to stamp are punished by Deprivation. Vid. Observ. on that Act.  

ACT 34.  Oppression of the King's Liege's in Fairs, by taking more Custom from them than is due, is by this Act punished only arbitrarly, as to the offenders Persons, and by a years Suspension from their Offices, and what Custom is allowed in such cases, is expressed, 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 every the place, and Toll wrongs Commerce.  
THough removing of Tenants, and poinding their Goods, 
ACT 35.  be appointed by this Act, to be three days after Whitsunday or Martinmass; yet by the 39 Act 6 Par. Q. Mary. All warnings against Tenants, are to be used forty days before Whitsunday 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 Tenants' 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 Forethought Felony, 
ACT 36.  that is to say, upon design, or per insidias (called Assassinium) are denied the Protection of a Sanctuary, or Girth by this Act; but it appears that the Crime of Assassination was here excepted expressly, because it not being expressed in the very Text of the Canon Law, there were several debates about it; vid. Covar. Variar. resolute. cap. 20. For though it be ordinarily proved, per cap. 1. de homicidio si quis per industriam occederit proximum suum & per i●sidias ab altari meo avellet cum ut moriatur; which Text seems to be meant by these words in this Act; For the which the Law grants not the Immunity of the Kirk; and in which our Law has followed the common opinion, that Assassinators are denied the privilege; yet cap. inter alia gives Immunity to all, except publicus latro & depopulator agrorum; and that cap. de homicide. Excepts only Churchmen, who have Assassinated proditory, and who indeed should have less Immunity than others; but now the Churches being a Sanctuary or Girth, is in Desuetude, since Popery was abolished; though the King's 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, neque Virginum Raptoribus, delinquentibus terminorum custodies cautelam, sed etiam inde extrahes & supplicium iis inferes: non enim talia delinquentibus parcere convenit etc. And now I find not that any of the King's Palaces are Sanctuaries as to Cryms with us, and in no case should they be a Sanctuary against searching for, and apprehending Malefactors; as is clear, l. 3. ff. de fugitiv, Diu. Marcus facultatem dedit ingrediendi tam Caesaris quam Senatorum praedia volentibus fugitivos inquerere. The Conyie-house pretends also to be a Sanctuary with us.  
This privilege of a Sanctuary was only granted to Holy, and Consecrated Places, and amongst Protestants, no Consecrations are in use, but yet according to the Canon-Law, Churches even before Consecration, are generally thought by Lawyers to have that immunity, vid. Covar. variar. resolute. cap. 20. num. 4. And albeit this Privilege be properly a Canonical Privilege, yet it cannot be denied, but that the very Churches of the Gentiles had this Privilege, as is clear by T●●ucid. lib. 7. and was approved of by Councils and Fathers, who are cited cap. 17. Quest. 4. Praesertim 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 Privilege of Immunity; albeit Skeen speaks only of the 30. paces in his Annotations, ad cap. 6. Statut. Alex. 2 d. Yet I read of no such Privilege to either the 30. or the 40. paces, nor to the Palaces of Bishops, nor to Hospitals, vid. Covar. ibid.  
BEfore this Act the Tennent might have been poinded by the Brief of Distress, for all the personal Debt owing by his Master, but by the first part of this Act, it is appointed, that the Tenants shall be poinded only for as much as they owe their Master which did hold only in poinding for movable Debts; 
ACT 37.  for in Decreets of poinding the Ground, the Creditor might have poinded 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 Tenants Term of payment were not come, if the Term of payment of the Annualrent were bypast; and they who were so poinded, had their relief of the Heretor, for whose Debt they were poinded; but now the Lords extends this Act so, as to defend Tenants against poinding upon Infertments of Annualrent granted by the Master, so that execution cannot pass against them for more than they owe their Master, as to which only they can be personally liable, and their Goods or invecta & illata can b● only poinded; 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 liable therefore. This Act extends only to Tenants of Lands, but not to Tenants of Teinds, who cannot be poinded for their Master's Debt, 14. January 1556.  
The second part of this Statute prescribes the way of apprizing Lands from Debtors, and it is the Original Statute whereupon apprisings 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 important case.  
The form prescribed to Compryzing, by this Statute, is, that if the Creditor cannot recover payment by poinding the Movables, the Sheriff shall cause sell the Land to the avail of the Debt; and from this Act it is, that to this day the Movables must first be fought, and though the apprizing will be null for want of this Solemnity; yet the offering to prove that there were as many Movables upon the Lands as might pay the Debt, will not reduce the Compryzing, except these Movables were offered to the Messenger, when he was executing the apprizing, and when the Scheduls of apprizing were laid on upon the ground of the Lands; tantum 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 Solemnity descends from l. 15. § 2. de re Jud. by which Movables were first to be poinded, and then Immovables failying of these, and was formerly introduced into this Nation by the cap. 9 Stat. 2 d. Rob. 1.  
By this Act, it is appointed, that the Lands be apprised to the avail of the Debt, this proportion was long observed, and much was referred to the arbitrament of the Judge and Inquest. Balfour, who collects the oldest Decisions, and such as were about the time of the Institution of the College of Justice, in his title of Comprizing▪ chap. 3. gives this for a Rule, that ilk twenty shilling Land of old extent, was comprised to twenty Marks, 4 July 1533. James Heren contra Henry Livel, and ilk Mark Land of yearly profit was to be Comprised to twenty Marks of Stock, which answered to five for the hundred, penult May 1589. Adam Dickson contra John Carhattel, penult. March, 1539. But I have seen divers old Comprising 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 than five of the hundred was allowed, as will appear by computation; one of these Comprizing dated 18. March, 1523. bears 21. Aikers, with 12. shilling Scots per aiker to have been apprised in payment of two hundred and forty pounds of principal due to the said Lord George; and a second Comprising also led at his instance, dated 17. December, 1541. bears, 25 Aikers, and two parts of an Aiker of infield land to have been apprised in payment of two hundred and forty 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 hundred and forty two pounds of principle, each aiker being valued to a merk of yearly Rent; a third apprizing at his instance, dated 6. Feb. 1544. bears, 20. Aikers and a half to have been apprised for 244. lib, of principal, ilk aiker being valued to 15. shilling of yearly Rent, and a fourth Comprising, dated, 5 th' May, 1547. bears, 18. Aikers to have been apprized in payment of two hundred and twenty marks principal, and the Rent of an aiker to be valued to a bowl of victual, and the price of the bowl 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 apprised, as the several apprisings 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 theirby appointed to have been the Rule in time coming, as he says.  
When Annualrents out of Lands were apprised, the Inquest did never exceed 5 per cent without a Dispensation from the Lords of Session, or else they were prejudged, says Craig, pag. 332. And the Compryzing 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 annualrent is a thing odious, and unlawful by the opinion of many Divines▪ and therefore not to be stretched. 2. Annualrents were free of public Burdens, to which Lands were subject, and therefore a greater allowance might have been given of Land-rent than annualrent.  
When Life-rent Rights, such as Conjunct-fee, Simple-liferent Terces or Curialitie were comprised, the estimation was made according to the age of the Life-renter, or Liferentrix, when within 40. years, the estimation was 5 years purchase, that is as much as the Fruits and Rents had yielded for 5. years preceding, or might yield in 5. years thereafter; and when the Life-renter exceeded 40. years of age, and was not of the age of 50. complete four years' purchase 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 sickly, 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 Comprizing, in making a proportion betwixt the Debt, and the thing apprised.  
The form and stile of Decreets of Compryzing of old was shortly thus; the Clerk of the Compryzing, who was ordinarily the Sheriff's Clerk, did extend a writing upon Parchment, containing all the particulars of the procedor, to wit, that the Creditor having obtained a Sentence before the Sheriff, decerning his Debtor to pay a certain sum, and there being no Movables to pay it, the Sheriff came to the ground of the Land with an Inquest 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 Debtor within the time contained in the Act of Parliament; and which Writing is Sealed with the Seals of the Judge, and of the Inquest.  
21. 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 paid within the Legal, though he was not paid when the Marriage fell, but was paid thereafter, 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 entered by the King, though a singular Successor. 2ᵒ. If the King were seeking this casualty by the Debtors Death, the Comprizer would exclude him, by alleging that the Debtor was Denuded, and it were unjust, that by this means, the King should want his casualty from both. 3o. The King falls all other casualties by the Compryzer, such as Recognition, Liferent Escheat, and the Compryzer by being entered, can do all Deeds that other Proprietars can do; and therefore should be liable in all other casualties, as they are. 4ᵒ. If this were not allowed, the King might be still defrauded of this casualty, for the Comprizer might still secure the Debtor, and if his own Marriage fell, he might thereafter cause redeem himself; And whereas it was pretended, that a comprising is but a pignus praetorium & in pignori●us non transfertur dominium, and so the Debtor being still Proprietar, remained still Vassal. To this it was replied, That though a Comprysing resemble pignus praetorium, yet it is truly an alienation, and this Statute appoints the Land to be sold to the Creditor; and by the whole Tenor 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 Alienation appears from this also, that it falls under Recognition; and Recognition presupposes still alienationem dominij. The Lords upon this Debate (which clears much the nature of Comprisings) preferred the King, for they found that the Compriser being Vassal, the Marriage fell by his Death, he having died before the Comprysing was redeemed, and therefore it may be doubted, whether the Compriser will have his relief, for the damnage incurred by this casualty from his Debtor, before the Lands can be redeemed from him, since it fell by his fault, in not paying him; nor is the Debtor much prejudged, for if the Lands had not been Comprised, this casualty might have fallen by his own Death, and the inconveniency urged 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 Creditors, all their Marriages had as well fallen, in that case, as in this.  
3o. 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 counted from the Date of the Decreet of Apprising, and not from the Date of the allowance, by our practic.  
4ᵒ. Though Superiors be not obliged to receive singular Successors, yet they are bound to receive Comprizers upon payment of a years Duty of the Lands Comprised, and this singularity is introduced in favours of commerce, and of poor Debtors, but to balance this speciality, the Superior is allowed to retain the Land comprised to himself, upon payment of the sums comprised for, because he is also proprietar of the Lands, having dominium directum, as the Vassal who is Debtor has Dominium utile, vid. 5. March. 1634. Black contra Pitmedine. But it was lately found, that the Superior could not redeem after seven or ten years, no more than the Vassal, for though the legal, as to the Superior, be not limited, yet he comes but in place of the Vassal, and so ought to have no more privilege, and this general must be restricted by the other parts of the Act.  
5ᵒ. Though the Superior be bound to receive the Comprisers, and that without producing their Authors Right, because it is not presumable that their Debtors, from whom they comprised, will produce their Rights to them; yet where Adjudications are led, for completing Dispositions, or other Rights, the Superior is not obliged to receive such Adjudgers, until they instruct the last Vassals Right; for such Adjudgers as these are not ordained by the Act of Parliament to be received, June 24. 1663. Mcneil contra Mcdougal. But it may be doubted, what an Adjudger, who has done ulti●at Diligence, to recover his Debtors Writs, shall do, if he cannot obtain them, it being very hard, that he should lie out of his Right, because of the contumacy of the person, who is obliged to complete the Right. Vid. obs. on the 19 Act Par. 2 Sess. 2 Ch. 2.  

ACT 39  THough it is said here, that Justice-airs need not be continued; yet Justice-courts are declared peremptor, so that if Actions before them be not called, 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.  

ACT 40.  BY this Act it is declared, 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 ordained to be turned into Books. and these Books are declared to be as authentic as their Originals, and the Clerk is yet designed Clerk of the Council Register and Rolls.  

ACT 41.  THis is the only Act, by which counterfeiters of Money are punished by death; and yet this Act properly strikes against the counterfeiters and coiners of Copper-money only, which in our Law is called black Money.  
It has been doubted, whether the Officers of the Mint could coin Copper-Money without express permission; but it was lately found they could not, because coining is ex sua natura inter regalia. 2ᵒ. There have been several warrants expressly granted to the said's Officers themselves, for coining Copper-money, and determining the quantity to be coined, and the rates to be followed, which had been needless, if this could have been done without a Warrant. 3o. There is so great profit to the Coiners, and so great loss to the people, by coining Copper and black Money, that it was necessary the coining should have been determined. 4ᵒ. It had been unnecessary and absurd, to have discharged the counterfiting and currency of Black-money by this Act, if it had been lawful to have coined without a Warrant; and whereas it was alleged that black money was Coined in England without warrant; To this it was answered, that such farthings etc. past only in the place where they were coined 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, 
ACT 42.  to show that in Reductions of Decreets of inferior Courts before the Parliament, the Defender is not allowed to propone Defences, that were competent and omitted in the first instance; and yet in Reductions of Decreets of inferior Courts, before the Session, alleadgances, though competent and omitted at the time of the first Decreet, are receivable by the Lords, especially if the Decreets be in absence  
Nota, That Dilators might have been then proponed, separatim; but now after a Dilator is repelled, all the other Dilators must be proponed together.  
Nota 2ᵒ. It is clear by this Act, that Decreets of inferior Courts were reduced 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 3o. That Brieves of mortancestrie (which are now called 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 superior Courts might give their opinion upon these, though they cannot serve an Heir; and thus two several persons having raised 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, albeit it was alleged, that this was only proper to be Debated before the Inquest, and yet though the Lords may determine, how a thing may be proven, & ipsum modum probandi, as in that case where the Debate did run, whether the being habit 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 itself, and the Objections against the Writs produced, but remitted the same to the Inquest; though it was alleged, that it being objected here, that the Writs produced for Probation were vitiated, the Lords could only judge this as being species falsi; but withal, the Lords declared, that if the Inquest desired to know whether the Papers were vitiated, 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 alleged that this was inconvenient, because no other Judge could reduce their Verdict; but certainly, either the Parliament might have reduced it, and found them guilty of Error, or the Lords of the Session might have reduced their own Verdict, upon new Probation; for in this case they proceeded, not as Supreme Judges, but as Members of Inquest. The Parliament have been sometimes the Inquest, as in Serving the Earl of Mar Heir to his Mother.  

ACT 43.  BY this Act, the Party put to the Horn for Slaughter, is to find Caution before he be Relaxed, not only to compear to underly the Law, but to pay twenty pounds for his Escheat Goods, and this is to this day expressed in all Relaxations.  

ACT 44.  VId. observe. on Act 38 Par. 4 Ja. 4.  

ACT 47.  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 represent them in all things which seems hard; for that were to make and create a new Parliament: but here their power was Delegated 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 empower a fewer number; nor were it fit for the People, to have the Supreme Power committed to so few, nec potest delegatus delegare: Nor can the Justices, nor Commissioners for Teinds, make such Committees, though they are as Supreme as the Council. vid. Observ. on the last Act 10 Par. Ja. 3.  

ACT 48.  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 assoilye, be by a Summons of Error before the Justices, and a new Inquest of forty five persons; and de facto, the Council do cancel such Verdicts and Sentences, before themselves, as they did in George Grahames Case; and ordinarily they mitigat the Sentences of the Justices.  
Nota, The Books of Regiam Majestatem, are by this Act called His Majesty's 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, 
ACT 49.  therefore Bushes are ordained 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 renewed by the 49 Act Parliament 4 Ja. 4.  
THough by this Act, he who tines his Action is to pay forty shilling of expenses; 
ACT 50.  yet the modification is left arbitrary to the respective Judges, conform to the Civil Law, which appoints condemnationem in expensas & litium damna contra temere litigantes 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 expenses at the Lords modification.   

King JAMES 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, 
ACT 52.  where the immediate Heir was himself under twenty five yea●s; and therefore by this it is appointed, that the age of a Tutor of Law, or Tutor legitimus, shall be the age of twenty five years, though the age of majority be twenty one, because it requires greater experience to Govern other men's Affairs than our own; and if the immediate Heir, be not of that age, the next Heir who has attained to that age, is to be Tutor. And by the Civil Law, no man could be a Tutor, even by a Testament, till he attained to that age, Inst. qui testament. tutor § 2.  
By this Act also, the nearest Agnat, that is to say, the nearest of the Father's side is to be Tutor, which was conform to the old Civil Law; but Justinian; by the Nou. 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 declared a part of our Law, 
ACT 54.  and the Chapter particularly related to is cap. 125.  
Though this Act appoints only the Heirs of Barons, Gentlemen, and Freeholders' to have Heirship-moveables. Yet by our Law, all Prelates, Barons and Burgesses may have Heirs, and these Heirs have right to the best of every thing that belonged 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 allowed only to Prelates, Barons, and Burgesses, seems to be, either because these being the only three States of Parliament, they only ought to be allowed such considerable Plenishing, as heirship-moveables; or else because in those days, none but persons of these qualities, could have such moveables; under the word Prelates are comprehended all beneficed persons. By Burgesses are understood all Tradesmen, and others Traffecking, or working within burgh's, but not honorary Burgesses; By Barons are understood, all who are Infest in Lands, though not erected in a Barony, and that maxim, semel baro, semper baro, is to be interpreted presumptive, so that he who is Infest in Lands, is presumed to die Infest: But if he was devested before his death, either by Comprysing, Resignation, 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 the quantitatibus & rebus ●ungibilibus quae pondere numero, vel mensurâ constant, as Money, Cloth, etc. 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 Thomson. 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 dozen, 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, 1ᵒ. If the appearand heir of a man, who has only a Disposition, but is not Infest, may have movable heirship. Dubitatur, 2ᵒ. If the appearand heir of him who has an Assignation to a reversion of Lands, may have movable heirship, since Assignations to Reversions, are real Rights.  

ACT 55.  BY this Act it is declared, that the Act ordaining personal Obligations, to prescrive in forty 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 allowed to do Diligence, as thirteen years were allowed in the Act of Prescription 1617. and therefore it would seem, that the Act 29 Par. 5 Ja. 3. Ordaining personal Obligations to expire in forty years, rather declares what was Law before, and that such Prescriptions have been formerly allowed 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; 
ACT 56.  by the old extent is meant, that to which the whole Lands of Scotland were valued, 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 tempore 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 heighten the Valuation, for maintaining the War; These Casualties being the greatest part of the King's Revenue; whereas the old extent is very inconsiderable, being in time of Peace, when there was no necessity for any addition to the Revenue, and when the value of the Money was very mean.  
BY this Act, 
ACT 57·  four of the old Council are to sit with the new Council; but this Act is now innovated by the posterior different Constitutions of private burgh's, Edinburgh, and many other burgh's having far more, whilst others have but the numbers here prescrived, or fewer. And as to Edinburgh, the manner of choosing the Magistrates and Councils thereof, is regulated by ●KING JAMES the sixth, his Decreet arbitral, commonly called the Sett. Vid. Ja. 3. Par. 5 Act 30.  
THe Superior not entering to his Superiority, 
ACT 58.  to the effect he may enter, his Vassal tines his Superiority for his life-time; and though this Act determines not for whose life-time the Superiority is to be lost; yet by an Act of Sederunt Anno 1634. It is ordained That the Superior tines his Superiority for his own life-time, and not for the Vassals life-time, and declares this to be the meaning of the Act.  
BY this Act it is clear, that stealing of Dogs, Hauks, and the like, 
ACT 60.  is not to be punished 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 punished as a Thief, for stealing another poor Fowler's 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, 
ACT 61.  Cunninghares, etc. is altered, and the Penalty heightened by subsequent 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.  

ACT 62.  THis penal Statute against Ferriers, not making Bridges, is in Desuetude, as are the Prices here expressed▪ Vid. Act 39 Par. 3 Ja. 1. Supra, and Act 20 Par. 4 Ja. 3.   

King JAMES the third, Parliament 8.  

ACT 63.  IT would seem by this Act, that all ordinary Actions must be first pursued before inferior Courts, which is likewise appointed by the 105. Act 14 Par. Ja. 3. But now any Action may be pursued before the Session or Parliament, in the first instance. But there can no action be raised before the Parliament without special warrant first passed 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.  

ACT 64.  BY this Act which is in present observance, such Assyzers as assoilyie a Panel unjustly, are to be pursued for Error; but such as condemn him unjustly are not, the reason whereof seems to be, that the Lawgivers presumed, that no Assyzer would condemn unjustly, but that probably they might show favour in absolving; and if Assyzers were punished for condemning, they would never Condemn▪ and since they get no Salaries, they should not be severely used, but though we have no Law allowing assyzes of error, against such as condemn; yet it may be alleged that Assyzers may be pursued if they condemn a man without any shadow of probation.  
2ᵒ. 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 declared, that by noble persons is meant only Landed-gentlemen.  
3o. The error must be inferred upon Principles and Grounds, which were represented to the Assyze, at the time of the Verdict, though the Retour may be reduced 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 reduced, yet the person assoilyed unjustly, cannot thereafter be punished, 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 enclosed, the Verdict is declared null, but the Panel being thereby acquit, cannot thereafter be accused.  
4ᵒ. The place of Reg. Maj. cited, but not expressed 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 called here twenty five noble persons.  
5ᵒ. It may be doubted from this Act, whether though the Panel be not assoilyed; yet it any, or more assizers who voted to assoilye, notwithstanding of the clear Evidences to the contrary, may not be pursued as temere jurantes super assisam, since he is guilty of Perjury, and Perjury is inferred from an unjust Oath, and not from the Effect; and though it may be pretended, that he followed his private knowledge, yet that cannot defend, since this may be urged, for all of them, if all should assoilye; 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 liable, except the major part assoilyed, they would adventure upon assoilying,, as an uncertain Event: But yet the Justices inclined not to this Opinion, since no Error was ever pursued, except where a person guilty was freed, this being the vindicta publica, allowed in that case.  
It is likewise observable from this Act, That the Assyzers committing wilful error, shall first be called before the King and His Council, who shall give them a great Assyze, and therefore His Majesty's Advocate 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 alleged for them, 1ᵒ. That the Verdict bearing only, that the major part had assoilyed & non constabat, who had assoilyed, 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 Verdict, who assoilyed 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 Verdict made all Criminal, and such as were free should prove their innocence, 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 easy remedy for preventing this, & sibi imputent, who did not mark who assoilzied, and who condemned; and though these Regulations introduced that, as a further remedy for clearing this matter, yet that was not necessary; for there were Assyzes of Error, before Assyzers were ordained to be so marked. 2ᵒ. It was alleged, that this was not wilful, 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 necessarily to be wilful, and by partial means, nor was it possible to prove these occult qualities otherwise than ab ef●●ctu 3o. It was alleged, that there being fourscore upon the Panel, the difficulty of differencing the Probation might excuse from wilful Error, but this was repelled, because the probation adduced was so clear. 4ᵒ. By this Act, Assyzes of Error are only to be allowed, where the Persons Indicted are shown before the Assize, in the assyze of Error, but so it is, the persons assoilyed by the former assyze 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 assoilyed were present they might prove their own innocence, and so clear likewise these who assoilyed 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 assoilyed, or condemned according to the Probation then led.  

ACT 65.  FOr Explication of this Act, vid: Not one Act 143. Par. 13. Ja. 1.  

ACT 66.  THis Act is explained in the Obseru. on the 17. Act 1 Par. Ja. 6.  

ACT 67.  BY this Act, Deeds done, and Rights made by Furious Persons, or Idiots are reduceable, not only from the date of the Brieus, but from the time that these Persons were found to be Idiots or Furious; for the Verdict of the Inquests upon such Brieus is declaratory, and finds that these Persons were such from such a time.  
Observe, That albeit, from the Style of the Brieve, of old a Furious, or Idiot's deed could only be reduced from the date of the Brieve, and that by this Act, such Deeds be only declared to be Reduceable 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 Brieus, nor Inquest, finding him Furious, the Fury being clearly proven, there being no reason that the negligence of Agates or Friends in not raising Brieus should prejudge the Furious Person, 21. Feb. 1632. and which seems yet harder, the Heir of the Furious Person will be allowed to reduce, though there was no Brieve nor Inquest in his own life-time; and it is very hard to know his condition 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 declared 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-convalesced, deeds done by him after that are valid, though there be no Declarator, and if there be only lucid Intervals, the deed is presumed to have been done in the fury, or lucid Interval, according as the deed itself is reasonable or unreasonable; and for clearing of this, the Lords in a case, Stevart contra Stevart, ordained Witnesses to be led before answer, to clear what condition the Granter was in, at the subscriving of the deed controverted, and it would seem that the presumption lies for its being done during the ●ury, and not during the lucid Interval, if the Granter was found furious by an Inquest; b●cause this Act of Parliament says, That frae it may be known by the Inquest, that the persons are Fools or Furious, all Alienations made by them, shall be null.  
Observe. 2ᵒ. This Act of Parliament strikes 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 dangerous, 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 Agnats, until their condition be first tried by an Inquest, though the Cravers offer to prove the same by Witnesses, beyond all Exception; and thus it seems, that though deeds done by Idiots or Furious Persons may be declared null by way of Action; yet themselves cannot be declared Idiots otherwise, than by an Inquest.  
Observ. 3o. That though all deeds done by furious Persons, are here declared null; yet sometimes they may oblige themselves validly is absents, and Pupils may be obliged, ●. furiosus ff▪ de act & oblige. & l. si a furioso ff. si cert. Pet. vid. Act 18 Par. 10 Ja. 6.  
Observ. 4ᵒ. From these words, and though it be known by the Inquest, 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. observe. on the 18 Act 10 Par. Ja. 6.  
BY the Act 68, Money and Gold being cried up, that is to say, 
ACT 68 & 69  the value of Coins being raised by the Parliament here, which is now usually done by the Council (both as to foreign Coins 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 bypast before the Act, which makes me think, that the reason of the Act was, because the Parliament thought it just, that no man's Breach of Obligation & mora, should be advantageous to him; and if the Creditor had got his Money in specie, he might have made other use of it, by carrying it abroad, etc. But yet now all Debts may be paid, according to the course that Money has the time of the payment, for as the Money may be cried up, so it may be cried down, and to bring both to an equality, the Debtor and Creditor 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 hand. 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 private 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 King's Taxations and public Deuce, were by the Kings own Concession, to be paid according to the value of the Money at the time of the payment, and are not to be exacted in Money, according as the Money was worth before it was cried up, Vid. last Act Par. 3 Ja. 3.  
It has been much doubted, whether it was true Policy to cry up Money; for though this seems to be an encouragement to foreigners, to Export our Commodity, of which we have too much, and to Import Money, of which we have too little; Yet it is urged on the other hand, that in crying up Money, we do but undervalue our own Commodity, and our own Land, and raise the value of Money, which is the Commodity of a foreign Country, such as Spain and other places who have Mines; as for instance, if we have use for carrying our Money abroad, Foreigners will only give us Commodities conform to the intrinsic value, for they will not consider our raising of it, and so he who got the Money, which was so raised, is cheated in as much as the Money is raised above the intrinsic value. 2ᵒ. As to our own Commodities at home, either they are raised to the same proportion with the Money, and then foreign Merchants will not bring in Money for our Commodity, because they can gain nothing by bringing it in, and so we lose the design of raising our Money, or else the Commodities are not raised in value to the Money, and so the foreign Merchant does only cheat us; as for instance, if our Money be raised a tenth part, the foreign Merchant gives us only nine Pieces for ten. 3o. 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. 4ᵒ. If foreign 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 higher, and then we shall have loss; and at best, different raisings of Money will occasion but great variation, and uncertainty in Coins.  

ACT 70.  COurts of Guerra here forbidden, seem to have been Courts holden upon Neighbour-feid and Riots, and Skeen found'st them upon § ult. tit. 17. de pac. tenend. lib. 2. the feud. Si ministeriales alicujus domini inter se Guerram habuerint, comes sive judex in cujus regimine eam fecerint per leges & judicia ex ratione prosequatur.   

King JAMES the third, Parliament 9  

ACT 71.  THis Act is Ratified by the Act 30 Par. 11 Ja. 6. Vid. Observ. on that Act.   

King JAMES the third, Parl. 10.  
THough all men be allowed to bring in Victual from foreign Countries by this Act, 
ACT 73.  yet the Importation of Victual from Ireland is Prohibited by Act 3 Sess. 3 Par. 2. Ch. 2.  
THe Act concerning Cruives, 
ACT 74.  is explained in the Act 11 Par. 1 Ja. 1. Which is the Act here related to.  
THis Act appointed the taking more than just ●raught, 
ACT 75.  to be a point of Dittay, because it was oppression, and irregular exaction, 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 Exactions.  
THe unlaw of such as burn Muires, is by this Act five pounds, 
ACT 76.  which is renewed 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 penalties are Ratified Act 84 Par. 6 Ja. 6.  
THe using other Barrels than the Hamburg Measure, 
ACT 77.  is made point of Dittay, because other Barrels were looked 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. 
ACT 78.  Where this Act is Explained.  
PVrprusion is the usurping and appropriating our Superiors Lands or Highways and Purpresture is much now in Desuetude. 
ACT 80.  The ordinary Remedy now, being actions of Molestation, or Declarators of Property; but Purpr●sion is not absolutely in Desuetude: For by the 5 Act 16 Par Ja. 6. It is ordained that such as Till the King's Parks, or Commonties, shall be liable in Purprusion, and punished according to the old ●aws, the same being Tried, 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 Trial to be by Molestation before the Lords was, because of old it was only Tried 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 burgh's of Regality, may be punished for Purpresture, or whether the Building a Foot or two further than formerly, even in burgh's 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 Purprusion, though that be the case mentioned 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 necessarily follow the labouring of Land, except the Vassal be a Baron, in which case he has power to judge riots, 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 delegates their full Parliamentary power to some of their Number, for hearing some Ambaci●itors, and deciding some Causes, licet delegatus non potest delegare, and such Delegations of the Supreme 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, 
ACT 82.  to be liable for the skaith they do, in coming to the KING'S 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 alleged from this Act, that it is not lawful for such as go to the KING'S Host to take free Quarter, or Meat and Drink gratis, which we call Freequarter, which may be further clear from cap. 5. Stat. 1. Rob. 1. Where these that come to the Host, are ordained to be served for their Money, and that they take nothing, but at the sight of the Bailies, and others there mentioned, under the pain of being punished as Robbers: But it is still doubted, whether the Country may be put to be the first advancers, when the Militia is raised in such haste, that these who are remote, cannot provide present money, and the Country into which they are sent, have by their irregularities occasioned their coming, it being unjust that innocent Shires who send in their Militia, should be put to expenses, in levying and entertaining men to repress the irregularities of others.  

ACT 83.  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, called Tower-houses, allowed to be build in Scotland, without an express Warrant 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 Licence, much less should Strengths be built: and from these grounds, and the practice of other Nations, it was contended lately, that the King may Garrison any man's house, when he and his Council find the having a Garrison in that place, for maintaining the Peace of the Country 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 pertinent, ad quem & regni defensio; quod si idem & jure nostro observari quis dicat, non, ut opinor, a●errabit, cur enim qui turrim sive fortal●●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 foreign Lawyers who treat of the power of Kings in general, Fritz. de jur. praesidij, penes quem Monarchia, is urbes, arces occupare potest, ●isque 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 extreme necessity, and even then the Heretor is to be repaid, if he must hire another House, as at Sea in Storms, all the parties concerned in the Ship are to contribute for repairing his loss, who for lightning and securing his Ship, is forced to throw his Goods overboard.  
IF a Woman who has a Conjunct-fee, 
ACT 84.  alienat it during her marriage, the alienation is 〈◊〉, except she ratify the same judicially 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 sufficient probation; yet now something must be produced 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 reason 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 mere 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 sufficient, but now, either a Woman must subscrive herself, or two Notars for her.  
Observ. 1ᵒ. 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 Decisions by the King, are inserted amongst the Acts of Parliament, as cap. 16 David 2.  
Observ. 2ᵒ. That though an oath is sufficient to confirm the Renunciation of a Jointure stante matrimonio; Yet it is not sufficient to confirm a personal obligation, granted by a Woman, stante 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 Husband's death: But in other Obligations, where the design is to bind herself, the Obligation is invalid, because she being sub potestate mariti, cannot oblige herself; and upon the same ground it is, that Dispositions granted by Heretrixes stante matrimonio, will be sustained, they having therein plenum dominium, as to the Property; and even personal Obligations for sums of Money granted by a Woman, who was an appearand Heir, there being a Back-bond granted to her, declaring that she should not be thereby personally obliged, was sustained to be the foundation of a Comprising; for as she might have disponed her own heritage expressly, so she might have lawfully granted an Obligation, whereby the same might have been Adjudged, January 23. 1678. Pringle and Bruce contra Paterson. vid. Stockman. decis. 59  
BY the Canon Law, Laics have no power of choising or electing church men, 
ACT 85.  c. Quisquis 43. c, massana. 56. the elect. & elect potest. So that the privilege here granted, seems contrary to the Canon Law; But as the King of France had power by the Concordata with Pope Leo 10 th', to nominat Bishops and Abbots; so our King had the nomination of Bishops and Abbots, and the provision of them belonged 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 Privilege of their Crown (for prerogative was then called privilege) yet it is con●e●●, that they derived this privilege from the Pope, Act 53 Par. 5 Ja. 4. For understanding this Act, it is necessary to know, that if the Kings who had these privileges, did not nominat within six Months, the Pope might confer the Benefice as he pleased: and if the King did nominat an unfit person, the Pope might refuse him; and the King was obliged to n●me another within three Months, vid. past. de benefis 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 King's privilege 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 devoluto.  

ACT 86.  FOr understanding this Act, it is fit to know, that regulariter beneficia vacatura, could not be purchased; and yet the Pope had reserved a power to confer, even these ex plenitudi●e potestatis, cap. proposuit de confer. praebend. 6. decret. But this Act i● made to annul all such Provisions to Benefices, not yet vacand.   

King JAMES the third, Parliament 12.  
THis Act giving the Warden power to continue his Courts, 
ACT 87.  shows 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 Warrant for it, since such as are cited, may be thus prejudged by delays: But since the King is the Fountain of Jurisdiction, it is thought the King may grant such Warrants, though there be some cases wherein the King has restricted himself by express Statute, as in Criminal Courts, which are declared to be peremptor by the 79 Act 11 Par. Ja. 6. Where it is observable, that these Courts are declared not to be continuable by the King's special will and direction, to show that continuations of Courts depended 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, 
ACT 88  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, securitatem, salvagardiam & salvum conductum. Vid. afflict. lib. 3. tit. 16.  
THough the selling or buying of corrupt Wine, 
ACT 89.  after it is found to be such, be declared 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 King's Host, 
ACT 90.  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 called together by Letters patent under the Privy 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 called together by Proclamation, and Letters from the Council, subscriv'd only by the Chancellor or Precedent 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 called the Signet of the Privy Council. Vid. Annot. on Act 30 Par. 3 Ja. 4.  

ACTS 91, 92.  The King's Rents of old were Governed by the King's Master-houshold and Compt-roller, and the Council, but now by the Exchequer, 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 King's Rents, are to be distrainʒied, that is to say, pursued in the ordinary way, viz. by poinding the ground for their reddendo, by Hornings upon their Tacks; but though the uplifting the King's Feu-duties was designed 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 expressed here against the Officers. who detain the King's Rents: But by the Civil Law, these who abstracted public Money, 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 public Money, and not in the withholding the King's Rents.  
Nota. This and the next Act bear not to be made with consent of the three Estates of Parliament, but only that the Lords think expedient; by which I think must be meant 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 meant, the Lords of Articles, because the Acts 95 and 96 of this Parliament bear the conclusion of the Lords of the Articles, though sometimes by the word, Lords, are meant the three Estates of Parliament, as in the 30 Act Par. 7 Ja. 2.  

ACT 93.  BY this Act the Rose-noble was made the standard of all the Gold, and it was of twenty two Carrots and ten grain fineness, but now our Gold is only of twenty two Carrots fineness, that Gold being too soft, and consequently, subject to be wasted.  
By this Act also the Warden of the Cunyie-house were first instituted, for understanding of whose Office, it is fit to know, that the Master of the Cunyie-house has the care of Coining, 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 Respites are discharged, whereby Justice is delayed; 
ACT 94.  and it's here said, that Respites are more against Justice than Remissions; the reason whereof seems to be, that Remissions are only granted after some Trial; but Respites are granted more easily, and may be sought more frequently, and that before the state of the case be examined; nor is the Party injured, assythed here as in Remissions: For the same reason also, Precepts for continuing Justice Courts, are discharged, and the Justices allowed not to respect them Act 79 Par. 11 Ja. 6. and by the 47 Act of that same Parliament, they are discharged also; for that Act strikes against Respites, as well as against Protections.  
THe Act anent Ferries is Explained in the observations upon the Act 75 Par. 10 Ja. 3. 
ACT 95.   
OBserve 1ᵒ. From this Act, 
ACT 96.  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 allowed 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 declared to be punishable by death, by the 56 Act Par. 6 Q. M.  
Observ. 2ᵒ. That the ordaining this Act to take effect after forty days Proclamation, implies, 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, 
ACT 98.  ending with these who swore to observe it, but the bringing Malefactors to the Bar in sober manner, without assisters, is commanded by many Acts, and though by this Act it seems, that the Justices cannot hinder some of the Panels friends to stand with him upon the Panel; that is to say, to stay at the Bar, and that four friends are allowed 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 Panel, 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 pursued at Justice-airs, but now the Justice Clerk keeps it himself, 
ACT 99  and gives it to the Macers of the Criminal Courts, or Messengers who cite the persons to be pursued.  

ACT 100  THe Defenders in slaughter are by this to be cited upon six days 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 Caution upon fifteen days, but if they be in prison they may get an Indictment to answer upon twenty four hours.  

ACT 101.  BY this Statute it is clear, that a person apprehended and incarcerated, must first be maintained upon his own expenses, and if he be not able to aliment himself, the Sheriff is to aliment him upon his Majesty's allowance, and by a late Act of the Justice Court The Keeper of the Tolbooth of Edinburgh is discharged to receive any Criminal Prisoner, till he who enters him Prisoner, find Caution to aliment; for before that Act, poor people were starved and ruined by their Imprisonment.  

ACT 102.  THis Act is in Desuetude, for nothing is due now to Crowner's, because they do not attach as formerly, and this was the price of their pains or Fee.  

ACT 103.  THis Act is in Desuetude, for no Sheriff tholes now an Assize, the last nor no day of a Justice-air, except he be pursued for some particular Crime, or for Malversation in his Office.  

ACT 104.  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 argued justly in the Earl of Caithness case, that though men refused to dissipat at the Sheriff's desire, he could not summarily 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.  

ACT 105.  THis Act ordaining the Causes of Widows and Orphans, Kirk-men, etc. only to belong to the Cognition of the Lords, is in Desuetude, and these Actions do properly belong to the Commissariot Court.  

ACT 106.  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 being a singularity indulged to them for the good of Commerce; and the subsequent Acts are proposed by that Estate to the Parliament, and by them turned into Acts, as appears by the Rubric itself.  
VId. Act 12 Par 2 Ja. 3. Vid. observe. on 47 Act Par. 1 Cham 2. and on Act 66 Par. 14 Ja. 2. 
ACT 107.   
THe Act here ratified, though not expressed, 
ACT 108.  is Act 30 Par. 5 Ja. 3.  
THough this Act allows the Burrows to meet every year at Inner-●eithing only, 
ACT 111.  yet thereafter they are allowed 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 Edinburgh, Pearth, Dundee, Aberdene, Stirling, and the Provost of the Town in which they meet, being always Precedent without Election, 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, 
ACT 112.  that the King shall be bound by his oath at the Coronation, that he shall not alienat the annexed Property, which oath is given by all the succeeding Kings.  
It is observable also in this Act, that the King's great Seal, and the Seals of all the Prelates, Lords, Barons, and Commissioners 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 King's great Seal was appended, as now it is to the Patent; and the Seals of all the ecclesiastics, were appended upon the right side, and these of the Laics on the left side, each Seal hanging from a Label or Tag, on which the owner's Name was writ, and in anno 1558. a Commission to the Lord Seton to be Ambassador in France, was thus Sealed by the King, and Signed by the Nobility, and by the 191 Act Par. 13 Ja. 6. The Morning-gift of the Abbacy of Dumfermling is said to have been under the King's great Seal, and the Seals and Subscriptions of the Estates in favours of Q Ann.  
THis privilege was granted by Malcolm 2 leg. M. c. 3 num. 4. but both that privilege and this Statute, 
ACT 113.  are now in Desuetude, so that now the Crowner has none of the Malefactor's Horses.  
THis Act appointing that strangers be well used, and that no new Customs, Impositions or Exactions be put upon them, 
ACT 114.  seems to limit the King's prerogative acknowledged by the 27 Act Sess. 3 Par. 1 Ch. 2. by which it is declared, that the King may dispose and order Trade with Foreigners as he pleases, a consequent of which Prerogative is, that he may either discharge Trade with Foreigners, 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 strangers, and not to the Kings own Subjects, so that though Strangers come, they should be civility used by this Act, yet they may be debarred by that Act.  

ACT 115.  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 called the King's 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 numbered amongst our Laws, but what is meant by the words (Acts and Statutes) added in this Act to the King's Laws, and Reg. Maj. I do not understand, except by these be meant the Burrow-Laws, and the Statutes of the Gildry, and these other Books that are bound in with Reg. Maj.    


K. JAMES IV. Parliament I.  
BY the twelfth Articl. Iter. Just. 
ACT 1.  The Burrows had liberty to repledge their own Burgesses from being upon assizes; which privilege is here regulated; but now the privilege itself is in Desuetude; for all Burgesses are obliged to pass upon assizes, except the Surgeons of Edinburgh, who have a special privilege, because of their necessary attendence upon sick persons.  
BY this Statute all Ships must come first to free burgh's, 
ACT 3.  and no Strangers can fraught Ships; but now by the 5 Act 3 Sess. 2 Par. Ch. 2. all ●urghs of Barony and Regality, may Traffic in the product of Scotland, as freely as Royal burgh's. Vid. That Act and the observ. thereon: That part of the Act discharging strangers to buy Fish that is not salted, is now in Desuetude.  
It was argued from this Act, in the case of the Town of Linlithgow against Borrowstounness, that the Burrows Royal had the only privilege of having all Goods Livered and Loadned at their Ports; and which is likewise clear by Act 88 Par. 6 Ja. 4. and by Act 152 Par. 12 Ja. 6. 2o. Without this privilege, the Burrows were not able to pay the sixth part of the burdens laid upon them, in contemplation of their Trade, since a Clandestine Trade without this might be carried on by the burgh's of Barony and Regality, who, since they may retail publicly, might have the same privilege as they, if they had likewise power to import publicly. 3o. This was most convenient for securing the King's Customs; because where ever there is Livering allowed, the King must have Waiters, and upon which consideration, the Magistrates of burgh's Royal are by the Acts of Parliament, appointed to assist the King's Customers; and whereas it was pretended, that the privilege of Commerce was inter regalia, and consequently the King might grant a free Port to any Burgh he pleased. 2ᵒ. The privilege of a free Port was different from that of Livering, and Loadning. 3o. The Acts of Parliament cited, did only discharge Strangers to Load and Liver, which is yet more clear by the Act 120 Par. 7 Ja. 6. To which it was replied, that the King and Parliament, having formerly granted the sole power of Loadning and Livering to free Burrows, it was no diminution of his power to assert, that he could not give a new grant of that to any, whereof he was formerly divested. To the 2 d it was replied, that the sole privilege of a free Port granted by a King to a Burgh of Regality, or Barony, can extend no further, than that thereby they may have the privilege of bringing into their Port, the Goods proper only to be sold by them. To the 3 d it was replied, that this Act discharges Strangers and others to Liver at any place, except at the Ports of burgh's Royal; and though in that 120 Act Par. 7 Ja. 6. This Act is repeated, as relating only to strangers, yet in the next line, Strangers and others are in that 120 again discharged; Likeas by the Acts of Parliament, the sole privilege of losing and losing, is declared to belong only to burgh's Royal, which in Seafaring Terms, signifies loadning and un-loadning.  

ACT 4.  BY the Act 85 Par. 11 Ja. 3. The Rents of Churches, or Benefices, whereof the King is Patron, are declared to belong to him sede vacant, by the privilege of his Crown, and this was so formerly declared by the 7 cap. Stat. 2 Rob. 1. And Skeen there observes, that cum alicujus beneficii Ecclesiastici patronatus pertinet ad Regem terra si quae sunt ei annexa pertinent quodammodo ad Regem; and therefore by this Act it is appointed, that it being declared by the best and worthiest Clerks of the Realm, that if any Churchman received, and purchased such a Benefice at Rome, they should be punished and these who supplied them; This Declaration from Clerks was required, because the Secular would not meddle with Churchmen in these days, till Churchmen had some way declared them guilty.   

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, 
ACT 7.  to be a Crime) is now in Desuetude; for they have no other privilege here, more than Laics; but to intromet with their Rents, either by Arms or open Force, is the Crime of oppression with us, and was punished by the Romans, lege Julià 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 declared a Crime to intromet without a right from them.  
I Understand not how it is said here, 
ACT 9  that the King could not discharge any part of the Taxation granted to him, though it was granted for a particular or public use, for it is ordinary and lawful to Kings with us, to discharge private parties their particular proportions, except the contrary be expressly provided, and the offer be so qualified by the Parliament; but here the King was minor, as appears by the subsequent Act, or rather this Taxation being 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 Embassy should have failed; And from this we may observe, that what is granted for a general and public use, cannot be otherwise applied or taken away.  
IT is observable from this Act that the King was Minor, 
ACT 10.  and that is the reason why he could not discharge something here expressed, which falls not under his annexed Property.  
THe Parliament here recommends only to the King, 
ACT 11▪  that his Majesty shall cause his Wardens observe the days appointed for Truce, and they meddle not with it, because what concerns Peace and War, belongs to the King, and not to the Parliament.  
THe restrictions here put upon the King, 
ACT 12.  proceeded from his minority.  
Nota, Counsellors are made accusable to the King and Parliament 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 King's minority, and therefore there were greater reason that they should have been liable for their Counsel, than when a King is major, for than he may judge of their advice; in which case, nemo tenetur de concilio nisi doloso aut fraudulento. But it may be inferred from this Act, that regulariter, Counselors are not liable for what they do, else this Act had been needless, obliging them to be liable 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 persons made an Act declaring that Rebellion lawful, which is yet extant amongst the black Acts, but was Expunged as most abominable and Rebellious.  

ACT 13.  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 Carrot fine, so that the best Money being but twelve penny fine, and the best Gold twenty four Carrot fine; there is a twelfth part of alley allowed in either, and so our Silverwork, and our Coin should be of the same fineness; but this Act has been in Desuetude, as to Silverwork, for which the Goldsmiths allege, that the people are to be blamed, 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 intrinsic value. We observe both in our Plate and Coin, the same Standart with England; but the Standart of the French Plate is finer than their Coin, to discourage their Subjects from having much Plate, and encouraging them to bring it to the Mint, for current Money. The reason that is alleged, why this alley is allowed to both Gold and Silver is commonly said to be, because they are not malleable 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 malleable 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.  

ACT 15.  IS formerly Explained in the 11 Act Par. 1 Ja. 1.  
THe Prince of Scotland was Earl of Cumberland, 
ACT 16.  whilst that Country belonged to this Crown, but when the Stevarts came to the Crown, which was in the Reign of Rob. the 2. Their heritage which was Renfrew, etc. was Erected in a Principality. That there was such an Erection, is clear from the Revocations made by K. Ja. 5. and K. Ja. 6. Where all Dispositions of Lands annexed to the principality, are revoked, but the Erection itself 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 Revenue of the Principality is managed in cumulo, with the rest of the King's Revenue, when there is no Prince, but when there is a Prince, he has a Chamberlain, who receives and counts for the principality 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 immediately; or as Vassals holding 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 King's Donator; though it was alleged that his Marriage of these Lands could not fall to the King, since he held other Lands Taxed Ward of the King, and he who holds Lands of the King, is not liable in a Marriage, for Lands holden of a Subject, and consequently, he being content to pay the Taxed Marriage to the King, the ordinary avail of his Marriage could not be craved, for Lands which he held of the Prince, who was but a Subject. The reasons of which Decision were 1ᵒ. 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 itself, we must construct it to have been thus erected. 2ᵒ. By this Act it is ordained, that when there is no Prince, the Vassals of the Principality shall come to Parliament, and none can come to Parliament 〈◊〉 such as hold of the King; and that same Act says, till the King have a Son, who shall be immediate betwixt the King and them, which clearly demonstrats, that till there be a Son, they hold immediately of the King. 3o. 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 effects. 4ᵒ. 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 considered as holding 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. 5ᵒ. By an express Decision observed 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. 6o 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 behoved to be comptable; nor can there be an Administrator where there is no Pupil: but the King is termed 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. 7ᵒ. This is clear by the practice of foreign Nations, Perez. ad tit. 1. lib. 10. cod. num. 10. Terrae quae in Appanagium dantur penes domanium semper manent solo usufructu provisionali●er concesso, alias contingeret Regium Domanium sensim diminui.  

ACTS 18 & 19  MEn used to give their best Horse or some other acknowledgement to great men, and especially to Chiefs of Clans, for their protection, and these are here discharged, and are a kind of Black-meal, they are now entirely in Desuetude.  
Nota, Possession past memory of man is not sufficient in unwarrantable exactions & oportet consuetudo sit rationabilis alias non tenet.  
THis Act is in Desuetude, for actions of poinding the Ground, are now pursued for recovering bygone annualrents, 
ACT 20.  in the ordinary Form of Process.  
THe Forcing the King's Tenants to do Service, is punished as oppression by this Act, 
ACT 21.  but the punishment is not specified, and though Oppression be punished by death, Act 42 Par. 4 Ja. 4, and by the Act 88 Par. 11. Ja. 6. Yet I think that here Oppression could not reach that far, and though it be ordained to be a point of Dittay (that is to say a Crime) by this Act, yet such Oppressions use to be pursued before the Council, Though some Oppressions may be pursued 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.   

King JAMES the fourth, Parliament 3.  
THe Alliance betwixt Scotland and France is here ordained to be renewed, and new privileges to be desired, 
ACT 23.  which were accordingly obtained, and the Alliance here mentioned is inserted in the 66. Act, 8. Par. Q. M.  
THe form of the Chancellary is not to be altered, 
ACT 24.  except in the Brieve of the Summons of Error; the reason of which exception is, because by the 35. Act of this Parl. the Form of the Summons of Error is altered in some points: But by the Act 13. Par. 10. Ja. 6. the Style is to be altered in no Letters.  
BY this Act the Superior of Ward Lands, or his Donatar, 
ACT 25.  are obliged to maintain the Heir during the time he has the Ward Lands, if the Heir has no other Blensh nor Feu-Lands; and though he have Blensh or Feu, yet if he have not as much of either as may entertain him, or if they be apprised, in either of these cases the Heir will have Action ex paritate rationis; and by the same parity of reason, it may be doubted whether Donatars to Liferent Escheats are bound to entertain the Rebels whose Escheat they have purchased, and it may be argued that they are not, since a man is only at the Horn by his own fault: This Donatar to the Ward is obliged to Aliment the Ward Pupil, by allowing him an Aliment, and not by keeping him in his House; and the Donatars assignee is bound to Aliment, though he got no Mails and Duties, if he cannot show why he was excluded from getting them, Sibbald contra Falconer.  
The Sheriff of the Shire, or Bailies are warranted to take Surety of the Superior or Donatar, that they shall not waste nor destroy the Lands during their right which our practic extends also to Liferenters, who are bound to find Caution to keep up their Liferent Houses and others in the same condition wherein they found them, and this is conform to the common Law; and all this matter is learnedly treated, Christin. ad leges Mechlin. tit. 14. And the way how this Caution is to be found, is fully cleared, Act 15. Par. 4. Ja. 5. where this shall be explained: This Act is founded upon Cap. 1. l. Malcolm 2. by which there is a mutual Contract betwixt the King and his Vassals, in which that King Distribuit totam terram Regni Scotiae hominibus suis & omnes Barones concesserunt Wardam & relevium de Haerede cujuscunque Baronis defuncti ad sustentationem Domini Regis. And though Arnisaeus de potest. Majesti. num. 8 inveighs against this Law (for which he citys Boethius and John Majors History) as contrary to reason, that being to add affliction to the afflicted: and because Pupils may serve the Superior by a Substitute, or by allowing a part of the Feu to him who serves. Yet I know no man would refuse Land upon this condition; and it is presumable that whilst the Vassal is a Pupil, he will only need an Aliment, but yet I confess that according to the very Text of the Feudal Law, Pupils are neither obliged to serve by themselves, nor substitutes, lib. 2. Feud. tit. 26. cap. Si minor, §. Si quis decess. 5. Tho posterior custom introduced the necessity of Substitutes, Gloss. in dict: §. Si quis. To which we by the foresaid Contract have added that the Superior shall have the Feu, and not be obliged to accept even of a Substitute.  
It is the received practice of Scotland, that the Liferentrix should entertain the Heir if she Liferent his whole Estate, which is only founded upon a consequence from this Act, and the parity of reason; but in my judgement, this practice is neither warranted by this Act, Argumento Legis, nor is it founded upon the Principles of, nor suitable to the Analogy of Law, for as to the Act of Parliament it (being joined with the Act 15. Par. 4. Ja. 5. whereby it is explained) ordains that the Donatar to the Ward shall find Caution not to destroy the Biggings, etc. As also that he shall entertain the 〈…〉 the Ward, but when it comes to Statute anent Liferenters, it appoints only that they shall likewise find Caution not to destroy the Bigging, but it appoints not that they shall Aliment the Heir, ergo, not only is there no warrant for the Liferentrix Alimenting the Heir from this Act, But on the contrary, the Parliament having both cases under their consideration, and not having extended the case of Alimenting to Liferenters, it must be concluded that they designed not that Liferenters should Aliment nam casu● omissus habetu● pro ommisso.  
2ᵒ. Laws ought not to be extended at most but ex paritate rationis, and therefore though Life renters and Wardatars aequiparantur by these Statutes, quoa d the finding of Caution, that was most reasonable, because there was eadem paritas rationis, since neither should waste that to which they had but a temporary right, and by the Common Law Liferenters were liable in the same way which was called cantio usu fructuaria, but quoad the Alimenting, the Superior in the Ward, or his Donatar, should be in a different case from the Life-renter, because the Superior in effect is but Tutor durante Wardâ, and therefore he should Aliment the minor, but the Liferentrix is a singular Successor.  
3o. In making Contracts of Marriage, there is no more allowed for a Life-renter than what may be a competency for entertaining the Liferentrix, and suitable to her quality; and therefore it is against reason & contra illud quod agitatum est inter partes contrahentes, to take away a part of her Aliment to Aliment another.  
4o. She being made Domina of her Life-rent by her Contract, and there being jus quaesitum to her thereby quod ejus est auferri ab eà nequit sine consensu suo.  
5ᵒ. Tochers are oft times augmented in consideration of the Coniunct-fie, and therefore its most unreasonable and illegal that what was given her for an onerous cause, should be taken from her and applied to the behoof of one who represents the Contracter, who was bound to warrant her Life-rent, and who got good deed upon that account; And it is unjust that the Husband by spending his Estate should burden her, or that his Heir should not rather want than she.  
6ᵒ. Whatever may be said to oblige a Mother jure naturae to entertain her own Children; and I think this Aliment has been at first founded on that Principle of Justice, whereby Donatores, Patroni & Parents, were only liable in quantum facere potuerunt, called by Lawyers Exceptio competentiae, yet there is no reason that a Liferentrix should be obliged to entertain an appearand Heir, who is a mere stranger; and this jus naturae oblidges the Mother not only to entertain the appearand Heir, but all her Children, as was found in the case of the Countess of Buchan: And albeit the Act of Parliament speaks only of Heirs; yet by our Law, even appearand Heirs will get an Aliment allowed them, though thereafter they renounce, but it is less clear, if it will be allowed them after they have renounced, July 16. 1667. Hamilton contra Symington: And yet in this case they are but mere strangers, and can no more be called Heirs, or appearand Heirs, after Renunciation; as also, though this Act mentions only Ward Lands, yet it is ex praxi extended to others who have no Ward Lands, the 22 Feb. 1673. Finnay contra Oliphant; And though both the Rubric and the words of the Act provide only Aliment for Minors, yet it is extended to appearand Heirs, who are Majors, as in the case of Rig contra the Lady Carberrie; nor will it be sufficient that the Liferentrix offer to entertain the appearand Heir in the Family with her, as Durie observes, the 14. Feb. 1627. Noble contra his Mother; nor is this only extended where the Mother Liferents all, but it is even extended to the case where all the Minors Estate, beside what is Liferented, is not sufficient to pay the debt, and is affected by legal diligences; as was found 13 Feb. 1662. Antonia Brown contra her Mother; but it may be very well doubted whether this last Decision may be extended where the debt is only personal, and I find the Lords did refuse to decide this point in a case debated 1667. betwixt the Lady Staniehill and her Son, though the Son there alleged that he sold his Land to hinder Comprising, and if it had been Comprised she would have been liable. And this Action for Alimenting the Heirs was still sustained against both the Grandfather's Relict, and the Father's Relict pro rata, of their Life-rents which they had of the appearand Heir; albeit it was alleged that the Mother having a nearer relation, and being the Wise of him who spent the Estate, should be only liable, or at lest first liable, 12. Decemb. 1677. Laird Airdrie contra the two Ladies; but yet I find the Grandfather was found liable in no proportion with the Mother, where he had only reserved a mean proportion to himself, when he did Infest the appearand Heirs Father, 7. July, 1629. It may be doubted whether a Husband marrying the Liferentrix, having given her a provision in contemplation of this Jointure will be liable to Aliment, since he is a mere stranger, to which all that can be answered is, that he was obliged to know it was liable to this burden; and if he will be found liable, it may be doubted if he will not be free from the provision given in contemplation thereof; tanquam causa data causa non secuta. As also, it may be doubted whether the pursuing such an Action as this will infer a Passive Title, seeing the appearand Heir is thus lucratus, but yet I think it will not, since he reaps thereby no advantage which would have accresced to the Creditors to whom no part of his Aliment would have belonged; and even appearand Heirs renuncing, will have right to an Aliment, as is observed before.  
The Civilians think that a Mother is obliged to Aliment her Child till it be past three years of age, l. 3. C. de Patr. Pot. & ibid. gloss. and even after three years of age, if the Father be not able to Aliment the Child, the Mother is, because the Child is obliged to Aliment and reverence the Mother, vid. Surd. de Aliment. quaest. 14, tit. 1. But they make no mention of such an alimentary action as this, which we allow.  

ACT 26.  THough buyers of Land be obliged to keep the Tacks set by their Predecessors, yet the Superior is not obliged to keep them when the Land falls to him in Ward, during which time he is Proprietar, nor are Liferenters nor Conjunct-fiars obliged to keep them during their temporary Rights; but when these Rights expire, the Tacks revive; and yet by this Act the Superior or Life-renter cannot remove them till the next Whitsunday after the Ward or Life-rents fall, the Tenants paying the mails and Duties to the Superiors or Liferenters; but it may be doubted whether this will hold, when the Duty is only a simulate Duty, and not near the Rent of the Land, for this was designed to secure the Tenants reasonably, but not to prejudge the Superior or Life-renter; but certainly this Act will not defend these Tenants who have paid their Duties to their Masters before hand.  

ACT 27.  THough particular pains be set down as to Lawburrows, in Civil cases, by former Acts, yet in Criminal cases, because of the importance and danger, it is left Arbitrary to the Judges to cause the Parties find Caution under what sums they please, and before the Council, likewise, the sum under which Caution is to be found, is, de praxi Arbitrary.  
Since this Act says that the Party complainand shall be harmless, it would seem by this Act, the Council can oblige no party to keep another harmless, except where the party himself complains, in which case he must give his Oath he dreads bodily harm, conform to the 129 Act, Par. 9 Ja. 1. vid. observe. on that Act. But yet the Council is in use to cause men find Caution to keep others skaithless, even where the parties do not crave it; but this is only in cases where there have been previous breaches of the peace amongst them, so that either a party does complain, and then he must give his Oath, and if he complain not there must be a previous breach of the peace, and in that case there is no need of an Oath or a Complaint that he does fear bodily harm. Though the Council or Justices may by this Act exact Lawburrows, yet by this Act it is only ordained where Complaints are raised before them, and by Complaints here is not to be understood Common Bills, for Lawburrows upon Common Bills are only raised in course before the Session; and there is a particular Servant in the Bill Chamber, whose Office it is only to write upon these Bills, and take the Bonds, and see that the Cautioner be sufficient; but the Council and the Criminal Court, only exact Caution of Lawburrows, when there are Processes intented before them, and the Judges there do see that either Party has reason to fear bodily harm, because of what has preceded.  
BY this Act Dismembration is made equal to Slaughter, 
ACT 28.  and it is to be tried within three Suns, and seems by this Act to infer death, if it be upon Forethought-fellony; but I have not observed it punished by Death, but only as mutilation by an arbitrary punishment, or Confiscation of Movable and Assythment to the party, Vid. 118 Act Par. 7 Ja. 5.  
BY this Act the King's Liege's are to assist at Justice-airs, 
ACT 29.  under pain of being punished as favourers of the Trespassers, and that Dittay is to be taken up against them for that effect; but by our present practice, though the Heretors of every Shire be by a Proclamation ordained to attend the Justices, whilst they remain in their Shire, yet their absence is never made point of Dittay. I find by the Registers of Council, that all the Southern Shires were cited to attend the Justice-airs in Q. M. Reign, and to bring with them provision for twenty days.  
ALl these Acts are in Desuetude; 
ACTS 30, 31, 32.  but it's observable that Park of Foulfoordlies', being charged to wait upon Hume of Wedderburn his Superior, at the Host, conform to his Charter, and being thereafter pursued for not attending him. The Lords found the Vassal fineable, though he pretended that by this Act 31. he was to attend the Sheriff, for he ought to have waited upon his Superior to the Sheriff, or the King's Captain, and these obligations were different and very consistent, July 1680. Vid. observe. on Act 16 Par. 6. and Act 76 Par. 14 Ja. 2. supra for clearing the 30 Act.  
COnvocations in the Country are punished only by pecuniary Mulcts, or Imprisonment before the Secret Council; 
ACT 34.  but Convocations within Towns are more dangerous; and therefore punished in this Act by Confiscating the Movables of the Offenders, and their Lives are to be in the Kings will, so that their lives may be taken; but by this Act, the rising at the Command of their Magistrates, is declared no Crime; and therefore it may be doubted, whether if the Magistrates should raise their Burgesses to invade their Neighbours, or to oppose His Majesty's Forces, if in these cases they can be pursued for Convocation, since they are by this Act warranted to rise at command of their Magistrates, which certainly might defend them in dubious, but not in clear cases▪  
Observe that by this Act all Burgesses are ordained to obey their Magistrates, when, and in what ways they shall be charged, either for the defence of the Kingdom, or common Good of the Burgh, under the pains foresaids, but the Magistrates use only to fine such as refuse to Ride with them, and I have heard the Lords demure, whether Burgesses were obliged to attend Prisoners without the privilege of the Town, at the desire of the Magistrates, since Sheriffs were bound to receive prisoners there, and Burgesses are only bound to Watch and Ward within their own Town and Territory.  

ACT 35.  THe Rule laid down in this Act, Viz. That wherever the Defender may be punished by Infamy, he must compear personally, holds not still true, but wherever he is to be punished personally, he must compear personally; and therefore it is that Defenders before the Criminal Court and Council, must compear personally.  

ACT 36.  THe Common-Good of Burrows ought not to be Sett without consent of the Deacons of Crafts, which is observed to this day, nam quod omnes tangit ab omnibus debet approbari; and by the Act 181 Par. 13 Ja. 6. It is ordained that the Common-good shall be Rouped yearly, which is also observed, and though that Act appoints it to be Set, by the advice of the Magistrates and Council, without speaking of Deacons of Crafts, yet that does not exclude them. By the Civil Law Bona civitatum non possunt vendi sine permissu principum propositis sacro-sanctis Evangeliis & insinuato decreto apud praesidem provinciae l. ult. C. de reb. Civit. Vendend.  
By this Act also the Rents of Burrows cannot be Set for longer time than three years allanerly, but it may be doubted, if they may be set from three years to three years, for many three years in one Paper; or if such Obligations will force Magistrates to renew the Tacks, for if this were sustained, the Act might be easily eluded, but the 10 of February 1631. The Earl of Galloway contra Burgesses of Wigtoun. The Lords found that this nullity was not receivable open exceptionis, especially not being proponed by the Town. These Tacks seem likewise to be valid, if restricted to three years, Vide Annot. ad Act 200 Par. 14 Ja. 6.  

ACT 37.  VIde Act 17 Par. 2 Ja. 4. & Act 97 Par. 6 Ja. 4. By all which, cracked Gold is commanded to be taken, if it be of fineness, all which renewed Acts show, that the people were unwilling to receive such Gold.   

King JAMES the fourth, Parl. 4▪  
VIde Annot. ad Act 85 Par. 11 Ja. 3. 
ACT 38.  But for further clearing this Act, it is fit to know that the Pope was in use, and pretended Right to confer by prevention, Benefices which were elective, and some whereof, the Patronages belonged to the King and Subjects, Vid. Coras. specimen Jur. Eccles. lib. 1 cap. 2. as appears by this Act and by the 53 Act Par. 5. Ja. 4. and therefore by this Act the impetration of these in such cases, is discharged under the pain of Proscription and Banishment; but by the 44 Act 6 Par, Ja. 3. and the 4 Act 1 Par. Ja. 4. It is also punished as Treason.  
IT is against the interest of the Church to unite Benefices, 
ACT 39  because every Union extinguishes some Benefices, and lessens the care of the Souls; and yet Union is allowed when the Benefices to be united are impaired, by Poverty, Hostility, or by Destruction of the People to be cared for, and lest the interest of persons should be more considered than that of the Church. It is by the Canon Law appointed, that all Unions of Benefices must be perpetual; but the Pope having reserved to himself the power of uniting any Benefices, propter plenitudinem potestatis cap. 6. the prebend. in 6. Clem. 1. ut lit. penned. nihil innov. Therefore the Subjects of this Kingdom went to Rome, and got Benefices united; and to prevent this, all unions of Benefices are discharged by the 44 Act Par. 6 Ja. 3. and the obtaining such Unions and Annexations is declared Treason, and since our Bishoprics and Abbacies were founded by our Kings, it was unjust that they could have been united without his consent, because even by the Canon Law, Benefices cannot be united without consent of the Laic Patron Bengeus de Benefic. cap. 3. §. 3. num. 7. Unions are now made by the Commission of the Kirk, and the ordinary reasons upon which Churches are united with us, are the meanness of the provision, the meanness of the two Paroches, and the paucity of the hearers; To the granting of which Unions the Patrons must still be called, because of the abovecited Constitution of the Canon Law, but they may be united, though the Patron consent not, if he show no good reason for his dissent.  
The Pope's also used to value Benefices upon new informations, whereby the value was much heightened; and therefore by that Act it is ordained that no Benefices be higher than they were in Bagimonts' Roll, which Bagimont was a Cardinal, who had made a Rental of all the Benefices in this King's time, as Skeen de verb sig observes, Verb▪ Bagimont; and this Taxation of Benefices, is founded on Extravag. suscepti Regiminis lib. 6. It is therefore appointed that none supply with Money, those who are to go to Rome, to make such purchases, Act 86 Par. 11 Ja. 3. But that Act seems unnecessary, for the Purchasers being declared Traitors, it was certainly Treason to assist them with Money, so that the said Act was made to certify and clear ignorant people, which the Law calls ad majorem evidentiam.  

ACT 41.  THis Act is formerly Explained, and that part of it which appoints the Hosts, with whom strangers lodge, to be comptable for their uncustomed Goods, is in Desuetude, except they were conscious to the guilt. Vid. observe. on Act 3 Par. 1 Ja. 4. supra.  

ACT 42.  Craft's men who exact from these of their Craft, are to be punished as oppressors; but I doubt what is the meaning of these words, and shall buy their life as common oppressors; and the most probable meaning is, that they shall be bound to take Remissions for so doing, as for a capital Crime.  
Nota, Common oppression is capital by this Act, and such Statutes, or Impositions laid on by Craftsmen, for extortioning the Liege's, are reprobated by the Laws of all Nations, as a species of Monopoly, Vid. Tritz. de monopoliis cap, 12 Vid. observe. on Act 21 Par. 2 Ja. 4. Supra.  

ACT 43.  Craftsmen leaving off men's work, if others refuse to complete it, because of Statutes among themselves, forbidding them to undertake any such work, such are punishable as oppressors; but if they refuse upon any other account, they are not punishable; for this Act punishes only such as make use of such unlawful Statutes, and if Craftsmen should come in to cheat this Act by a general resolution not to suffer any to complete what another had begun; I believe that the Magistrate might punish this as a cheating contravention of this Law.  
Nota, That Tradesmen who make Statutes against the Common-well of the Liege's, are punishable as Oppressors, for otherwise Craftsmen might extortion the people at their pleasure. This is also discharged, l. un. C. tit. 59 lib. 4. de monopoliis & nov. 122. cap. 1. Aedificiorum quoque artifices vel Aergolabi, aliorumque operum professores penitus arceantur pacta inter se componere ut ne quis quod alteri commissum sit opus impleat, vid Trith. cap. 12. and observ. on Act 80 Par. 5 Ja. 1. supra.  

ACT 44.  IT is free to sell Victual in all Burrows any day of the Week, though it be no Mercat day by this Act; yet now every Burgh has its own Mercat days for Corn as well as for other things.  
THough by this Act the users of false Measures and Weights be only punished as Falsaries; 
ACT 47.  yet the Justices found that the havers of false Measures should be also punished as Falsaries, though using could not be proven; since these who had them, are presumed to have had them only for use, except the presumption were taken off, as by proving that the Weights were only borrowed, or laid aside upon Trial, May 1671. In the case of Porteous at a Justice-Court in Jedburgh; but by the 14 cap. Stat. Dau. 2. The users of false weights were only to pay 8 Cows to the King.  
IT is clear from this, that the Masters commanding his Servants, 
ACT 48▪  or Cottars to break Laws, such as Muir-burning, specified in this Act, does not free the Servants, but makes both liable (albeit Ignorance and Command when joined, might seem to excuse the breach of a penal Statute, at least a poenâ ordinaria) but the Masters Command should not excuse from the punishment where the Transgression is either against the Law of God, of Nature, Nations, or the Crime is atrocious in itself.  
SOme of the Nobility having most Rebelliously fought against King James the third, upon a false pretext, 
ACT 50.  that he was bringing in the English upon the Kingdom, they advanced his Son King James the fourth to be Leader, and having prevailed, they secured themselves by several Acts, yet extant in the black Impression, but which are omitted in this Impression except this one.  
THe King Revocks all Tailʒies made to Heirs-male in prejudice of heirs general; 
ACT 51.  because (as Craig observes) this is against Conscience, and is defrauding of the Righteous Heir; and I have seen old Licences granted by the Pope, to make such Tailʒies and Alienations for reasons expressed in the Bull, and upon Consideration whereof the Pope dispenses with the matter of Conscience, and in the Act 50 the Estates without the King revock all such Rights, quod notandum.  
Nota, The King here Revocks all change of holdings from Ward to blench, and not from Ward to Feu, because it was lawful at that time to change from Ward to Feu by the Act 71 Par. 14. Ja. 2.  
Nota, Union of Lands in Barony is revoked by this, and all the posterior Revocations of our Kings, because one Seasine serves after the Union, and the Proprietar is only obliged to answer at one Court, so that the King loses several Casualties. Vid. Act 93 Par. 6. Ja. 4.   

King JAMES the fourth, Parl. 5.  

ACT 54.  BY this Act Barons are to cause their Sons learn Latin & jure, that is to say Law, because the Act says, that they may have knowledge of Law to prevent needless coming before the King's Principal Auditor, for which reason also Advocations are much discouraged by many subsequent Acts: Auditor was not a proper term for the Session, for Andientia is properly allowed only to such as have not Jurisdiction, as is clear by Gothesr. ad Rubr. C. de Episcopali Audientia.  

ACT 57  BY this Act all Actions of Error against Brieves, or inordinate Process are to be pursued within three years, else they prescrive: And by the Act 13. Par. 22. Ja. 6. It is declared that the prescription secures only the Assyzers against wilful Error, but that the Retour may be quarrelled within 20 years, as to the right of Blood prejudged by the said wrongous Retour. And it is observable that the Law favours still revenge less than reparation.  
Obs. 1. Notwithstanding of this Act a Retour, or the execution of a Brieve, or any other piece of the Process may be improven at any time within forty years, and the Process itself may be reduced in consequentiam by Reduction of any Writ whereupon it followed, Hope tit. Reductions of Decreets.  
Obs' 2. That this short Prescription of three years runs not against such as are Minors, or out of the Realm, in imitation of the Civil Law, which allowed immobilia praescribi inter praesentes decennio, inter absentes viginti annis.  
Obs. 3. That these words, (be raised and pursued,) imply not that the Process must be ended, but that it must be begun within three years, and the Process is said to be pursued when the Summons is executed. Vid. Observ. on Act 64. Par. 8. Ja. 3.   

King JAMES the fourth, Parliament 6.  
IT is observable that though this Parliament is expressed in the Printed Acts, as held upon the 11th of March, and all these Acts are expressed as past upon that day, yet I find by the Records themselves, that they were all past upon the 15th of March, which is also called quinta dies Parliamenti.  
Item, It is observable that all the Acts of this Parliament are only set down in way of breviate, and thus the 62 Act is thus expressed in the Original Record.  
Item, It is Statute and ordained that where any person happens to get a Remission in time to come, that the said Remission shall not extend nor save the taker for greater Crimes, be any general clause nor is contained especially, and that the greatest action shall be specified, or else it shall not be comprehended; and that the general clause shall not include greater nor the special clause.  
THis Act is formerly explained. 
ACT 58.  In the Obseru. on Act 65. Par. 3. Ja. 1. and Act 62. Par. 14. Ja. 2.  
THese Acts are useless, 
ACTS 59, 60.  for all these Jurisdictions are now otherways divided and established.  
THe Shires of Inverness and Ross having been again after this Act united, they were and are now disjoined; 
ACT 61.  and whereas this Act makes the Town of Thane and Dingwall to be the head burgh's of the Shire of Ross, the Town of ●orteross is added as another head Burgh to the other two, by an Act of Parliament, 1661.  
IT is appointed that general Clauses in Remissions, 
ACT 62.  remitting all Crimes, shall not be extended to greater Crimes than the Crimes specially condescended upon in the Remission, but to evite this, Remissions do now express specially all the great Crimes, and then a general is subjoined; and upon this Law it was controverted in Glenkindies case, whether a Remission for slaughter should be extended to Murder, since Murder was pretended to be a greater Crime, as proceeding upon forethought Felony; to which it was answered, that Slaughter was a general term comprehending both Slaughter and Murder. It may be argued from this Law by a parity of Reason, that Discharges granted for a special Sum, and thereafter discharging generally all debts, shall not be extended to other Sums greater than that which is specially discharged; but yet the 24 th' February, 1636. It was found that such general Clauses did cut off all Sums, even though greater than the Sum discharged in special.  
THis Act ordains all Remissions for Slaughter to be null, 
ACT 63.  if the Slaughter was premeditated, and upon forethought Felony; nor is this Act temporary, being to last in all time coming, till the King revock the same specially; but yet this excellent Law is not the praxi now observed, though it be most reasonable, Vid. Act 169. Par. 13. Ja. 6. And the same reason given here for it, (viz. because many in trust to get Remissions did commit slaughter,) is set down to the same purpose, Canon injusta, Quaest 4. Nun etiam cum uni indulget indigno ad prolapsionis contagium provocat universos, facilitas enim veniae incentivum tribuit delinquendi. By the cap. 50. Stat. Dau. 2. It is ordained that no Remission for Murder upon forethought Felony shall be given, except in Parliament, and for a public good.  
Observe here the discreet stile wherein Kings are limited in the exercise of their Royal Power, for here the King declares it is his pleasure that such an Act be past, and desires the Estates to pass it; and since this Act is to last till it be revoked by the King, it may be doubted if the King alone may revock it without Authority of Parliament.  
The like Act discharging Remissions for burning Corns, Ja. 5. Par. 7. Act 118.  

ACT 64.  THough Bishops are by this Act to appoint and deprive Notars, yet they are now both tried and deprived only by the Lords of Session.  
Though this Act appoints Bishops and their Ordinars to take inquisition who uses false Writs, yet none but the Lords of Session are now Judges to improbation, which is the only Process competent for trying falsehood of Writs in the first instance, and the Commissar who is the Bishops Depute can never Judge of falsehood now; except where the falsehood falls in only incidenter, and by way of exception; as if I were pursuing any Action before the Commissars, and it were alleged that the Execution of the Summons were false, there the Commissar would be Judge competent to try the falsehood of the Executions, for else his Jurisdiction were useless; and all Sheriffs, Lords of Regalities, Stewards and the like, have the same privileges.  
BY this Act Summons for recent Spuilyies must be executed upon 15. days, 
ACT 65.  whereas all Summons were to be executed upon 21. days, by the 6 Act, Par. 1. Ja. 3. which is the Act here related to, though not cited; and by an Act of Sederunt 21 July, 1672. this privilege is extended to recent Intrusions, which is a kind of Spuilyie in immovables.  
Observ. 1. That since the Parliament thought that the former Act of Parliament could not be derogated from without an express Statute, it may seem strange why the Lords do privilege any Summons by their own power, or if they had power, why they did not make actions of recent Spuilyie and Intrusions to come in upon 6 days, as well as Exhibitions, poinding of the Ground, and other less favourable Causes? to which nothing can be answered, but that there was an old custom for the one, but not for the other.  
Observ. 2. That the last words of the said Act, viz, That there shall be no exception dilator admitted against that Summons, it being lawfully endorsed, seem to imply that the Judge should grant no continuation, though that properly cannot be called an exception dilator, or else that the Judge should restore spoliatum ante omnia, and admit no exception upon property nor compensation, etc. but these are not properly dilator defences, or that the not continuation of the Summons upon 21 days warning, should not be objected, but that is likewise unnecessary, since the first part of the Act did that sufficiently; and so these words with that sense had been superfluous, and therefore I rather incline to think that these words were only designed to show the Parliaments great desire to have recent Spuilyies dispatched, though ill expressed; it may be doubted whether recent Spuilyies being only such as are raised within 15 days after the Spuilyie is committed, Sabbath or Feriot days should be counted amongst the 15.  
Observ. 3. That it may be argued that Spuilyies regularly cannot be pursued before the Sheriff, or else why is it allowed here as a privilege to recent Spuilyies, that they may be pursued before the Sheriff; and it seems the reason why Spuilyies regularly should not be pursued before Sheriffs, is because the damages in Spuilyies must be taxed by an Oath in litem, and that is nobilis officii, and consequently cannot be administrated by any inferior Judge, nor can these inferior Judges modify what is sworn by an Oath in litem, that being yet nobilioris officii.  
BY this Act the Sheriff is to have 12 pennies of every pound, as Sentence-money, which was called Sportulae by the Civil Law, 
ACT 66.  and this Sentence-money is still in use.  
THis Act appoints every Lord and Laird to have a Cuningare; but it may seem strange why none are allowed to have Dovecoats, 
ACT 74.  except they have ten Chalder of Victual in Rent; and yet men are commanded to make Cuningars, since Cunins may prejudge Neighbours, as Doves do; which makes Craig, as I conceive, doubt whether the Vassals may have a Cunigare, except the same be granted to him: But though the Superior grant Cunigars with the clause cum Cuniculis Cuniculariis, the former doubt remains, for the Superior cannot prejudge third Parties. To which these answers may satisfy.  
1ᵒ. That it was necessary by this Act once to invite men to plant Cunigars, whereas Dovecoats were frequent before the Act 1617. that restricts them.  
2ᵒ. This command is only to Lords and Lairds, which implies men of Estates, but is not given to all the Liege's; and I doubt not but if an Heretor of ten Chalders of Victual, or thereby, should plant a Cuningar, but his Neighbours might by common Law, and an Argument drawn from the Act 19 Par. 22. Ja. 6. force them either to enclose their Cuningar, or to give it over.  
BEfore this Act the Heir could not have been pursued for any debt till the Executor was first discussed; 
ACT 76.  but by this Act the Heir is made liable to the Creditor after his annus deliberandi expires, both as to heritable and Movable debts, which was very just, because quoad the Creditor, they all represent the Defunct, but yet he will get his relief of all Movable debts from the Executor, as far as the Inventar extends; and if he be served Heir within the year, the Creditor will get action against him for heritable debts, even within the year, for by entering Heir he renounces his benefit of deliberating, and if he possess the Estate, he ought to pay the heritable debt; but though he enter Heir within the year, he should not be liable for Movable debts by this Act till the year expire, since as to these he has no benefit by entering, and though he renounce the benefit of deliberating, yet he does not renounce the benefit of this Act, Hading. Tit. Heirs.  
Nota, Heirs are called in this Act Heretors, from the French word Heretiers.  
But Quaeritur if the Executor be discussed, and found insolvent, may not the Heir eo casu be pursued within year and day, and the affirmative seems strongly founded upon the reason and decision of this Act: And yet by the present practice, the Heir entered is liable even for movable debts, though pursued within the year.  
Item, Though by this Act the Executor is bound to find Caution to relieve the Heir of all movable debts, yet there is no Law obliging the Heir to relieve the Executor of heritable debts, but de practica, the Lords sustain ex paritate rationis, actions against the Heir for relieving the Executor of all heritable debts, 7. March, 1627. Falconer contra Blair, vid. Spotswood, tit. Executor Carnoussie contra Laird Meldrum, which seems to be contrary to the words of this Act, whereby it is more than insinuated that the Father's Movable Goods should pay his debts; and by the Narrative of 106 Act Par. 7. Ja. 5. is yet more clear; By the Civil Law the Children that were in potestate patris were forced to enter Heir, but thereafter this was thought too severe, and therefore the Roman Praetor allowed even to these Heirs a liberty to abstain, and a year to deliberate whether they would be Heirs, which we have borrowed from thence, but jure novissimo the Heir was to be only liable according to the Inventar, if he made one, & non ultra vires Inventarii, which holds only with us in Executors who are Heirs in Movables, for Heirs in heritable Rights are liable in solidum, if they once enter.  

ACT 77.  IF the Marriage was not quarrelled by a Process in the Husband's time, as unlawful, the Wife will have right to her Terce, without necessity of proving a lawful Marriage, and will possess her Terce till the Marriage be found to have been unlawful; for in the common Law, and ours, an unquarreled cohabitation is a valid probation of the Marriage, l. in libera 24 ff. de rit. nupt. Yet it cedes to a contrary probation, as all praesumptiones juris do, vid. Pacian. tract. de prob. lib. 2. cap. 3. And in our Law Bastardy is not inferred, because the Marriage cannot be proven, but it must be proved positive that the Defunct was reputed Bastard, Feb. 19 1669 K. Advocate contra Craw, & June, 15. 1670. Livingston contra Burn And if that be proved, he who pretends to be Heir must prove also that the Defuncts Father and Mother were lawfully Married. By the same parity of reason the Husband will have right to the courtesy of Scotland till the Marriage be found null; and the allegiance of Bastardy is not receivable summarily against the service of an Heir, vid. infra observe. on Act 94. Par. 6. Ja. 4.  

ACT 78.  ALL who did hold of the King were of old obliged to come to Parliament, till by this Act these whose Lands are within 100 Marks of new extent are indulged not to come, except they be specially called by the King. This Act seems obsolet, for none are specially called now; whether the King may yet call any Barons he pleases, is dubious, both because they were once bound, as well as impower●d to come; and this faculty was only remitted for their own advantage, and after that, this Act allows the King to call them; And it seems reasonable that if there be any wise Baronin the Kingdom, the King who calls Parliaments for consulting the great affairs of the Kingdom, should have liberty to call him, albeit the Shire choose him not, and the King may make any man a Lord of Parliament.  
Nota, These who were then Members of Parliament could have sent their Procurators, but now no Procurators are admitted for absents further than to excuse their absence, which is done by a Letter to the Commissioner, or Chancellor, or by a Member. Vid. obs. Act 52 Par. 3 Act 101 Par. 7 Ja. 1. Act 75 Par. 14 Ja. 2. supra, and Act 21 Par. 3 Char. 2. infra.  
THis Statute is explained Act 48. Par. 3. Ja. 1. 
ACT 79.  But the reason why it is here added, that the Isles especially shall be governed by the King's Laws, was, because the Kings of Denmark pretended that the Isles of Orkney and Shetland should be governed by their Laws; for the King of Denmark renounced all right to these Isles in favours of K. James the third his Son in Law, in Anno 1461. Vid. Skeen de verb. sig. verb. Annuel.  
THat all Officers should be changed yearly, is formerly glossed, 
ACT 80.  in the observ. on Act 30 Par. 5. and Act 5 Par. 7 Ja 3. That none have Jurisdiction within Burgh, but such as use Merchandise, is by some interpreted to be sufficiently satisfied in those who once used Merchandise, even as semel Baro is semper Baro, and few present Provosts are actual Traders; and therefore it was doubted whether one who has been a Merchant, but was thereafter a Senator of the College of Justice, might not be a Provost. Vid. infra observe. on Act 26 Par. 4 Ja. 5.  
IT is fit to know that the Dukes of Burgundy gave the Scots the first privilege of Staples, 
ACT 81.  which was transferred to Camphire at the Christening of Prince Henry. The Conservator is by a right under the Great Seal constituted Judge there betwixt Merchants, and he must have by this Act six Assessors, or at least four, which is still observed, and the Decreets run in his name, with the consent of his Assessors; and of late by articles with the Prince of Orange. The Conservator has the sole Criminal Jurisdiction, when Crimes are committed by Scots Merchants; he is likewise by his Patent Constituted Agent for all affairs relating to Scotland, as well as for Trade. By an Act of the Burrows at Air 1602. It is declared that all Goods that pay Custom, either when they are carried out from, or in to the Kingdom, shall be accounted Staple Goods, and so being under the Protection of the Conservator, he claims to have Fees for them; but in anno 1612. There is a List of Staple Goods made by the Burrows; and in 1647. they made a new List, declaring and ratifying the former.  
THis Act is still observed, 
ACT 82.  for the Conservator uses to come or send in July; But by twenty pounds great, here expressed, are meant twenty pounds Fleems.  
THis Act forbidding Mercats to be holden on holy days, is in observance, 
ACT 83.  but this part which forbids Mercats in Kirk-yards, under pain of escheating the Goods, is not observed, though renewed Act 70 Par. 6. Ja. 6. and Mercats are discharged in Churches, decret. pars 1. distinct. 42. But I find them not discharged expressly in Churchyards, though Churchyards had in other things the same immunity with Churches, and thus they were Sanctuaries, as Churches were, Can. sicut antiquitus Canon definivit 17. Quest 4. and their extent was to be forty paces in greater Churches, thirty in lesser. Vid. observe. on Act 36 Par. 5 Ja. 3.  

ACT 85.  THis Act is useless, for no Taxation can be laid on, except either in Parliaments, or Conventions of Estates, and to these all the three Estates must be called; but it shows that of old, Taxations were laid on in Conventions, which consisted of any the King called summarily off the Street; nor were the Burrows ofttimes called, Therefore this Act was made, declaring that no Taxation or Contribution should be given without warning the Burrows, as one of the three Estates: Taxations are properly Burdens laid on by Parliaments; and Contributions are our voluntar offers made by Conventions; but we use now the word Taxation for both, what burdens are laid on by Parliaments and Conventions; though this Act requires indefinitely the Burrows to be called, yet by the 82 Act 9 Par. Q. M. It is only required that six of the Burrows be called.  
The Burrows Royal pay a sixth part of the Taxation of Scotland, and they divide their proportion amongst themselves, according to 100 pounds' scots, which is their As, or imaginary total, according to which every Town pays their proportion: and though any Burgh resign their privilege in Parliament, they must pay till they Dispone their Common Good to the rest, and then their proportion is divided amongst the rest.  

ACT 86.  THis Act appointing no Burgess, or Gild-brother to be made without consent of the great Council of the Town is in Desuetude.  

ACT 87.  VId. leg. burg. cap. 122. The pain now is arbitrary, and punishable, either before the Council or Criminal Court, vid. Act 27 Par. 4. Ja. 5.  

ACT 89.  THis Act is useless because of the Act 1617. ordaining all Seasines to be registrated, and this Act is thereby in Desuetude.  

ACTS 90, 91.  THese Acts are but Temporary, and yet they serve to clear the Act 71 Par. 14 Ja. 2. And the Lords found that by Forfalture in the Act 91. is meant, not only Recognition, which is sometimes called a Forfalture, but Forfalture for Treason, etc. and by this we may see, that abrogated Laws, and Laws that are in Desuetude, should be read and considered, and may be of great use in Decisions and arguings.  
THe reason of making this Act was, because Lands united are fictione juris, one and the same, 
ACT 93.  and so should properly answer to the Court, to which the principal messwage answers; and therefore this Act was made to secure the interest of the ordinary Judge, which declares, that notwithstanding Lands are united in a Barony, yet they shall answer as formerly, to their own Jurisdictions, but the Baron whose Lands are united, needs only compear by this Act in that Jurisdiction, where the principal messwage by the Union is, and yet the praxi, they are still called in all the Suterols of the other Shires, where any of their Lands lie, and are forced to send Acturneys which seems contrary to this Act.  
THere are two kinds of Brieves, one called a ●rieve of play, 
ACT 94.  which is our ordinary Summons; another called a Brieve of Inquest, which is yet in use, as in Services of Heirs, Tutors, etc. vid. For clearing this Act, lib. 3. R. M. cap. 28, & 29. & Stat. Rob. 3. cap. 1. And because the Service of Heirs is no Brieve of Pley, therefore no exception is to be admitted against it, except it be instantly verified.  
This Act appoints all Brieves to be executed upon fifteen days, and the Lords have found, that all such Acts as these appointing Citations upon such a number of days, do not require that both the day of Citation and Compearance be free, but it is sufficient that either of them be free, July 27. 1626. Meculloch con. Meculloch. If the Brieve be not proclaimed upon a Mercat day, than it must be proclaimed before the Town Officers, and six honest men to make it public, and thus it seems the Parliament thought these equivalent to a Mercat day; but this holds not in other cases, where Proclamations are to be upon Mercat days, nor even in Brieves is this now used.  
Nota, By this Act, if persons refuse to pass upon the Inquest, the Sheriff is authorised to compel them; and this I think the Justices may do in Criminal cases also, for the Justice's ar● higher Judges than the Sheriffs; and as the public is more concerned in these cases, so men will be more unwilling to pass upon them, except they be compelled; and though there be pecuniary Penalties appointed against absent Assyzers, yet that is but an ordinary remedy, and does not exclude this extraordinary one; even as the penalties appointed against Witnesses, does not exclude the taking them with Caption.  
FAlsing of Dooms are now in Desuetude altogether, 
ACT 95.  and to them have succeeeded Reductions, in our present practice. Vid. ●bs. on the 117 Act Par. 9 Ja. 1.  
BY this Act it is ordained, 
ACT 96.  that all Measures and Weights be made the same thorough all Scotland, and the Standarts to remain at Edinburgh, and to be ordained by the Chamberlain and his Council, for then the Chamberlain, or Camerarius Scotiae, was Judge in all things that concerned the burgh's of Scotland, and was in use to hold a Council, who with him judged in Matters that concerned all the burgh's in general, as the Dean of Gilled and his Council Judge in every particular Burgh, and his Statutes of old concerning Weights and Measures, are to be seen, Iter. Camer. cap. 30. but this Office and Jurisdiction over the Burrows, is now obsolet, and the rectification of Weights and Measures is only considered by the Parliament, or by the Council in prosecution of the Acts of Parliament.  
Though by this Act all the Standarts of Weights and Measures, are ordained to remain at Edinburgh; yet by Act of Burrows they have been divided thus; The Standart of the Stone-weight remains at Lanerk, because the chief Commodity of old that was weighed by the Stone-weight, was Wool, which was paid in to the King at Lanerk, and was therefore called Lanae-Arca. The Standart of the Pint or Jugg, was left at Stirling, because the King's Court resided there. The Standart of the Furlot remains at Linlithgow, because the King had no other Residence in the three Lothians, which were the chief Countries for Corns. And Edinburgh had the Ell, which is the chief Instrument for measuring Silks, or other foreign Stuffs. I find likewise, that the Town of Wigtoun, and other particular burgh's, have an acknowledgement paid them for Measuring the Jaggs within particular Brewaries within their Territory, and these who agree with them to pay this, are said to have a free Stallage; and the Imposition is called their Deaurie, because it is taken up by their Dean, when the Shire resolved to quarrel this Imposition. It was answered, that it was just, because th●y inspected the Measures for the good of the Liege's, and that it was confirmed by immemorial Possession.  
I have here set down the Foundations of all Measures and Weights for what was set down in the cap. 22. Stat. Robert 3. is not exact.  


Of the Weights, and Foundation thereof.  
A Corn or pickle of Wheat, taken out of the midst of an Ear of Wheat, is the foundation of a Grains-weight.  
Eighteen of these Grains make the half-Drop-weight.  
Thirty six Grains make a Drop-weight.  
Four Drop-weight is a quarter of an Ounce.  
Four quarter▪ make an Ounce-weight.  
Eight Ounces is a Merk-weight.  
Two Merk-weig●● 〈◊〉 a Poundweight.  
Sixteen Poundweight makes the Stone-weight of Laner●▪  
There was also a Throne Stone-weight, which did weigh nine●een pounds and eight ounces of Paris weight, wherewith the Butter, Cheese, Wool, Tallow, and such other Country Commodities as carry refuse was weighed.  
There are other quantities whereof the weight is here set down, to give some contentment to the Reader, as a Tun-weight of light Goods, which is the Common fraughting of all Merchandise betwixt this Country and France, England or Spain, which Tunn is esteemed to weigh 600 pounds' weight.  
A Sack of Goods, which is the common fraughting of all Merchandise from this Country to the Low-countrieses, esteemed to weigh 40 Stones, or 640 pound weight,  
The Sirplith of Goods which was the common Fraughting of Merchandise betwixt this Country and the Eastern Countries, is esteemed to weigh eighty Stone-weight, or 1280 pound weight.  
The Last of Goods is esteemed to weigh 120 stone-weight, or 1920 pound weight of light Goods.  
The Last of Metal and other heavy Goods▪ is 2850 pound weight.  
The Fodder of Lead is 126 stone, or 2000 pound weight.   

The Weights following are used by Apothecaries, in mixture of their Medecines, wherein the least is a Grain.  
TWenty Grains make a Scruple.  
Three Scruples maketh a Draghm.  
Eight Draghms maketh an Ounce.  
Sixteen Ounces maketh a Pound.  
The Medicinal pound is twelve ounces.  
A Sheckle-weight mentioned in the Bible, is half an ounce.  
A Talon is counted 120 pound weight.  
A Talon of Money is 600 Crowns.  
The weight of all quantity of wheat Bread, at every price of  
Wheat is set down in a Table hereafter following.  
In all our Neighbour Countries, the Flesh is sold by weight.  
If the Meal were sold also by weight, it might prove profitable to the Liege's.  
The twelve ounces Troy weight 〈◊〉 England, weigh twelve ounces three drop twenty one grains 〈◊〉 weight.  
Now of these our weights, are made other Measures, both for Corns and liqu 〈…〉 ff.   

The Foundation of the liquid Metts, proceeding from the weight.  
THe Scottish Pint, or Standart Jugg of Stirling, is found to contain three pound seven ounce weight of the Water of Leith.  
Every Pint is divided into two Chopins, or four Mutchkins.  
Two Pints maketh a Quart.  
Four Quarts or eight Pints is a Gallon.  
The Herring-barrels contains now eight Gallons and an half, though by the 57 Act Par. 4 Ja. 6. it is to contain nine Gallons, twelve of these go to a Last, and eight to a Tunn.  
The Salmond-barrel contains now ten Gallons and a Quart, though by the 110 Act Par. 14 Ja. 3. it ought to contain fourteen Gallons; and by the 57 Act Par. 4 Ja. 6. it should contain twelve Gallons; but by an Act of Council, July 15. 1619. it is to contain ten Gallons.  
Two Barrels, or seventeen Gallons is the full of Burdeaux-hogs-head.  
The Puncheons of High-Countrey Wines, are of thirteen or fourteen Gallons.  
Three Paris Puncheons make a Tunn, or four Hogsheads makes a Tunn.  
Two Pipes, or two Butts is a Tunn.  
Six Barr●kins or Ter●●s make a Tunn.  
Six English Buns of Bear is a Tunn.  
Six Salmond-barrels is a Tunn.  
Eight Herring-barrels is a Tunn.  
Twelve Barrels makes a Last.  
Our Scottish Pint contains being filled to the top, very near four Pints and an half of English.  
Now if the Ground be true, that the Pint doth weigh fifty five ounces, then consequently the Tunn should weigh 116 Stone fourteen pound. The Puncheon full twenty nine Stone three pound and eight ounces. The Barrel being full fourteen Stone, nineteen pound, twelve ounces. The Gallon should weigh one stone, eleven pound, eight ounces. The Quart full six pound fourteen ounces. The Pint three pound, seven ounces. The Chopin one pound, eleven ounces and an half. The Mutchkin full thirteen ounces twelve drops.  
By our Custom there is a Plouck in every Jugg or Stoop, and the Wine is only measured to the Mark or Plouck, but Ale and strong Waters are measured to the top.  
By the 14. cap. Statut. Dau. 2. The pound of Caithness is ordained to be the common measure, but that weight is not so much as known now; but it is clear by the cap. 22. Stat. Robert. 3. The pound than contained fifteen ounces, but now it is sixteen ounces.   

The Foundation of the Dry-metts.  
THe Furlot of Linlithgow, which is the Standart for the whole Country, for metting of Wheat, Ry, Beans, Pease, Meal, and white Salt contains twenty one Pints and a Mutchkin of Water; which Furlot is divided in four Pecks, and the Peck is divided in two half Pecks or four forparts.  
The Furlot for metting of Bear, Malt, or Oats, which were called heaped Corns, contains thirty one Pints of Water.  
Four Firlots make the Boll.  
Sixteen Bolls is a Chalder.  
Eighteen Bolls and an half is counted for a Last of Ry.  
The half Boll Met of the Water measure of Leith, contains nine Pecks of the ordinary measure.  
The English Quarter of Corn contains near by two Bolls of Scottish Measure.  
The Boll of Wheat will weigh fourteen Stone and three pound.  
The Furlot of Dry-wheat three stone, eight pound, twelve ounces.  
The Peck will weigh fourteen pound three ounce.  
The half Peck seven pound one ounce and an half.  
The measure for Coals is declared to be the Culross Chalder, by the 17 Act 3 Sess. Par. 1. Ch. 2.   

The Foundation of measures for length, breadth, and thickness.  
THree Barley Corns fair and round, lying in length, without the tails make an Inch.  
Twelve Inches maketh a Foot.  
Three Foot is an English yard.  
Three Foot and an Inch or thirty seven Inches makes the Ell of Edinburgh, which Ell is parted in four quarters, and every quarter in four nails; which measure of a foot having fallen in Desuetude, is renewed by the 18 Act 3 Sess. 1 Par. Ch. 2.  
Forty five Inches is the English Ell.  
Twenty seven Inches is the Fleemish Ell.  
In France every Town hath a divers Measure, The Foot wherewith the Glassen-wrights measure their work, is sometimes of nine Inches, and sometimes of eight Inches.   


Of the Rood of work.  
A Rood of Land contains 240 els of measure; but a Rood of work wrought by Masons or Sklaiters contains but thirty six els, that is, if any piece of work be found to be eighteen els in length, and two els in breadth, it makes a Rood.  
Twelve els in length and three els in breadth, is a Rood.  
Nine els in length and four in breadth is a Rood.  
Eight els in length, and four els and an half in breadth, is a Rood.  
Six els in length and six els in breadth is a Rood.  
A Rood of Land within Burgh is esteemed of old to be twenty foot, that is, five foot in length, and four in breadth.   

The Foundation of an Aiker of Land.  
Fix els of the Standart of Edinburgh, makes a lineal-fall wherewith Land is measured.  
Six else long and six els breadth, make a superficial, or square-fall, wherewith Land is reckoned.  
Forty lineal Falls makes a Rood.  
Ten Falls in length and four in breadth, makes a Rood.  
Eight Falls in length and five in breadth, makes a Rood.  
Four Roods is an Aiker.  
So an Aiker contains 160 lineal Falls, or 960 Ells.  
Eighty Falls in length, and two Falls in breadth makes an Aiker.  
Forty Falls in length and four in breadth, makes an Aiker:  
Thirty two Falls in length and five in breadth, is an Aiker.  
Twenty Falls in length and eight in breadth, is an Aiker.  
Sixteen Falls in length and ten in breadth, is an Aiker.  
Four Aikers are counted for a Ministers Gleib.  
Six Aikers arable Land for a Husband Land.  
Thirteen Aikers is counted an Oxen-gate.  
Four Oxen-gate is esteemed a pound Land of old extent.     

ACT 97.  VId. observe. on Act 17 Par. 2 Ja. 4. supra.  
THis Act is only conceived in prohibitive terms, without any penal sanction, 
ACT 98.  and though this be forbidden, yet it is not declared a Crime, and yet it was found a Crime to poinded Labouring Oxen in time of Labouring, and punishable by a pecunial mulct, January 1666. Lord Rentoun contra the Sheriff-Depute of the Merss.  
The Time of Labouring is not determined by this Act, and therefore the Lords have special regard in this to the Custom and Season of each respective Country, as was decided November 15. 1627. So that though they were labouring, yet if it was not the season of labouring, they have not the privilege.  
But if the Debtors Labouring be ended, though the Season of Labouring be not generally ended in the Country, yet his Labouring Goods may be poinded, November 22. 1628. Spootswood h. t. tells us that a paritate rationis, this privilege was extended to a going Salt-pan, sed leges in privilegiis non sunt extendendae.  
If the Debtor have no other movable Goods; the Creditor may poinded even Labouring Goods, by the words of this Act; for it seems the Parliament thought it not just that a man should lose his Debt altogether, and though the privilege here granted may seem only a delay, yet by abstracting the Goods, during that Suspension, he may be totally frustrated.  
The Common Law, to which this Statute relates, is l. 8. C. Quae res pigr. obl. possunt & authent. agricultores ibid. but by that Law, the persons of the Labourers could not be apprehended, nor made that Law any distinction whether there were other Goods poyndable. Vid. Tract. Crim. tit. 31. where this Act is more fully explained.  
THis Act is Explained, Act 117 Par. 9 Ja. 1. 
ACT 99   
THe former Acts of Revocation, revock not expressly all things done in hurt and prejudice of the Kirk, 
ACT 100  but this was employed under the general of what was done in hurt of the King's Soul and Conscience; but in this Latin Revocation, which appears has been ordained to be in Latin, that a Churchman might draw it; The King Revocks all that has been in detrimentum seu laesionem Ecclesiae Catholicae, and to show the King and Parliament enixa voluntas, all such Deeds are ordained to be razed out of the Books of Parliament. The word Kirk, comes from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, for so the House of God was named amongst the Christians who were Greeks, as the Latins named it, Domus Dei vid. Mons▪ Fleurii des mocurs des Christiens, who gives this Origination for the word Kirk.   

King JAMES the fourth, Parliament 7.  
BY the Act 73 Par. 6. Ja. 4. 
ACT 101.  Some places were ordained to answer at Justice-airs in other places than the head burgh's of their own Sheriffdoms, which is here restricted only to Justice-airs and Sheriff-courts, by which I think is meant taking of Dittay; but now both these Acts are in Desuetude, for every place answers to Justice-airs, according to the Division of their own Shires.  
IT is most observable from this Act, that it was made in a Scotish Parliament or Council, 
ACT 102.  holden within England, which Refutes that Opinion, that our Kings cannot hold Parliaments nor Councils without their own Territories, upon the mistaken principle that Judex extra territorium jus non dicit. It is likewise observable, that this Act is made only by the King, with the advice of his Lords. And it is probable, that this Act like a testamentum militare in procinctu, must have some allowance given to it against the Common Rules, and that it imported only a Discharge of the Wards and Marriages of such as died in this Host, and was only valid because the King and Lords remitted only therein a Casuality due to themselves; so that this Act was but a general Discharge by the King and his Subjects then present, who were Superiors; but why then is it inserted amongst the Acts of Parliament? Or how could it have obliged absents? And the Rubric calls it an Act made by our Sovereign Lord King James the 4. and yet this is not properly an Act of Parliament; for this Parliament is held in Anno 1509. whereas this Act is made in Anno 1513. and it may seem only an Act of Council made by the advice of the Lords, that is to say, the Lords of Council, which Judicature then Governed the King's Property by its Acts; and it has been thereafter inserted amongst the Acts of Parliament, for the greater security of those who had hazarded their lives at this time; and therefore by the 3. Act p. 2. I. 5. This Favour is extended to the Vassals holding of Subjects.    


K. JAMES V. Parliament I.  
THE Master by this Act is bound to deliver up his Servant who is attached or challenged as a Thief, 
ACT 2.  or Robber, vid. Stat. Alex. 2. c. 21. Stat. Will. c. 15. Stat. Da. 2. c. 1. and Act 6. Par. 3. Ja. 5. And in the Registers of the Council there are many Bonds given by Masters in those terms, vid. obs. on the said 6 Act.   

King JAMES the fifth, Parliament 2.  
THese two Acts discharging the Wards of those who were killed in the King's Host, 
ACTS 3, 4.  or prorogating for 5 years the Tacks of Tenants, were very reasonable, but being temporary, are not now in observance, for the Wards of these who died in the King's Host at Worcester, or else where, fell without any privilege▪ That the 3d d Act is Temporary only, appears from these words, That are now killed in pursuing or defending in time of Weir, against our old enemies of England; for that enmity ceased by the Union.  
Observ. From both these Acts, that the receiving a deadly wound, is equiparated to the being killed.   

King JAMES the fifth, Parliament 3.  
BY this Act the Porteous Roll was to be delivered to the Crowner, 
ACT 5.  but now it is delivered to the Sheriff when Justice-Airs are to be held, though these who are Crowner's do still protest against this Innovation.  
When the Crowner got the Porteous Roll, containing the names of those who were to be cited to the Justice-Airs, he was obliged to cite them at their dwelling houses, and Paroch Kirks, by this Act; for by the word, Arrestment in this Act, and many of our old Laws, is meant Citation; but if they can be apprehended personally, this manner of citation is unnecessary, though that be not here expressed. By the present Practic, if they cannot be apprehended personally, they are to be cited at their dwelling houses, and at the Mercat Cross of the Head Burgh of the Shire where they live.  
2. By this Act if the persons to be cited can be found, the Crowner is to take Surety of them for their appearance, which the Sheriff yet does; but if they be not Streinȝieable, that is to say, if they cannot be apprehended, than the Crowner was to arrest their Goods, like to the annotatio bonorum in the Civil Law.  
3. If they have no Goods to be arrested, they were to be put in the King's Castles, that is to say the King's Prisons.  
4. If the King has no Castles within that Shire, they were to be delivered to the Sheriffs, who are bound to keep them securely.  
By this Act the Crowner is to be answerable for the Caution he takes; for the Act says, That they shall take sicker Surety, sick as they will stand for to the King's Grace; and it is pretended that the Clerk of the Justiciary is not bound for the Surety he accepts, though the Crowner and Sheriff be, because the Crowner is obliged to know who are Solvendo in the Shire, which the Clerk of the Criminal Court cannot know through all Scotland; but I think that both are equally obliged, viz. to do exact diligence to know the solvency of these they take; and since the punishment of taking insufficient Caution is not here expressed, it seems to be Arbitrary, and in effect to take Surety that is notorly insufficient, seems the same guilt with letting a Malefactor escape.  
THe Master here is only obliged to present such Tenants as dwell within the Shire with him; 
ACT 6.  but by the Act 2. Par. 1. Ja. 5. If the Complainer would attach the Tennent, & the Master be required to deliver him up, whether he lived in the Shire with the Tennent, or not, he was to be punished as Art and Part, in case he refused to deliver him up; and by this Act he is only to pay the Unlaw. But this last Act is not well observed, for now no man is liable for his Tennent, except Highland Heretors, and Chiefs of Clanns, who are to find Caution to the Council for that effect, vid. Acts 92, 93, 94, etc. Par. 11. Ja. 6. But by this Act it is clear that the King may make Masters still liable for their Tenants who live upon their Ground, and that in any Court, though this Act appoints them to be presented to Justice Airs, since eadem est ratio, and this Act was adduced for justifying the Proclamation that appointed Masters to be liable for their Tenants, vid. Act 2. Par. 1. Ja. 5. And the Acts there cited, where Masters are liable for Servants, vid. tit. 55. lib. 2. Feud. where Vassals are obliged to present their servants to their Superiors, if they have offended them: But since by this Act Masters are only to be liable for the Tenants' unlaw, if he present them not. It may be doubted what this unlaw is, since in Justice Airs if the Tennent was absent, he was ordinarily denunced Fugitive; for the Justice Court does not unlaw an absent Defender, and therefore by this unlaw may be meant what the Tennent would be unlawed in, if he had been present, vid. Stat. Will. Regis, cap. 7▪ & 8.  
BY this Act these who are Surety to the Party injured, 
ACT 7.  for Assythment, may be called before the Lords of Council, either in Session or out of Session; but this is now abrogated by the late Constitution of the Session, who are come in place of the Lords of Council who then were.  
The meaning of these words in the Act (And as for Slaughter and Mutilation, to keep the order of the Act made thereupon of before;) Is that Slaughter and Mutilation are not comprehended under this Act, because by the 63. Act, Par. 6. Ja. 4. No remission can be granted for these Crimes, and therefore there can be no Assythment.  
THis Act is further explained in Crim. pract. tit. Fire-raising; but it is fit here to observe, that in these words, 
ACT 8.  that particular Justice Courts shall be set thereto, as shall please the King's Grace, his Council, and the Justices; the word (And) is taken disjunctive, as is often in the Civil Law, and our Statutes, l. 66. ff. de haered. Instit.  
Nota, The kill of Thiefs is declared no Crime.   

King JAMES the fifth, Parl. 4.  
EXcommunication is here called the Process of Cursing, 
ACT 9  and Excommunication used in time of Popery to be granted for not payment of Civil debt, or not performing of Contracts, or not restoring of spuilyied Goods, is now in desuetude (for all these were held to be mortal sins;) and by this Act Letters to Poynd or Appryze were to be granted thereupon; And by the 7. Act, Par. 4. Q. M. their Movable Escheat falls to the King, if they lie under the Process of Excommunication for a year, the Creditor being first paid, which Acts are further enlarged by the 3. Act 20. Par. Ja. 6. By which their whole Rents and Revenues are to be applied to the use of the Public, and all Gifts of Escheat granted to the behoof of the Wife, Children, or Confidents of such as are Excommunicated for Popery, are declared null, Act 197. Par. 14. Ja. 6. It may seem strange that Excommunication repels ab agendo sed non a defendendo, and yet Horning debars from both, though the person Excommunicated be the greatest Delinquent, being at God's Horn, 8. July, 1636. Colstoun contra Cranstoun, Vid. observ. on Act 11. Par. 6. Ja. 2. supra.  

ACT 10.  THis Act is innovated and enlarged by the 1. Par. Ch. 2. Sess. 1. Act. 41.  

ACT 12.  THis Act is in observance to this day, but it holds only in Forests notorly known to be such; for if there was probable reason of doubting whether it be a Forest, the Goods feeding in it will not be escheat for bygones, vid. Leg. For. c. 2. §. 2. & sequen. Because this Act says, if any person be found putting their Goods in Pasturage in the King's Forest, they shall escheat the same; therefore it seems reasonable that if Goods be only found there, this is not sufficient to escheat them, since they might have strayed there, & Dominus non tenetur ad poenam si animal ex seipso ingrediatur in locum prohibitum ut est Forresta Borel, de Magistrate. Edict. lib. 4. cap. 6. num. 18.  

ACT 13.  VId. Annot. on Act 61 Par. 7 Ja. 3. supra.  

ACT 14.  THis Act relates to Act 88 Par. 14 Ja. 2. Whereby Hares are not to be killed in time of Snow: and Act 59 Par. 11 Ja. 6. and Act 266 Par. 15 Ja. 6. whereby Hares are not to be killed at any times by Guns, Girns, Nets, or Crossbows, which last is yet in observance, and all these Acts are revived by a Proclamation of Council, in Febr. 1680.  

ACT 15.  BY the 25 Act 3 Par. Ja· 4, It is ordained that the Superior of Ward lands or his Donatar, shall find Caution to leave the Houses, Orchyards, Woods, Stanks, Parks, etc. in as good condition as they found them, they taking their Sustentation, or using them in needful things, without waste or destruction, which is extended to all Liferenters and Conjunct-feers, who are ordained to find the like Caution by this Act. By which also, all Sheriffs, Stewards, Magistrates within Burgh, and Spiritual men within their bounds, are also commanded to exact this Caution.  
These Acts are also extended to all such as have Life-rent Tacks from the Heretors, without payment of any considerable duty, though the words of this Act run only against such as have Liferent Infeftments; but this Act should not be extended to such as have Liferent-Tacks, for payment of an equivalent Duty, Qui sunt conductores & non usufructuarii; for the Heretor is rather obliged to entertain the Houses to such Tacks-men, than they to him, January 23. 1635. Laird of Laidly contra Boyd. But this is to be understood of such Tacks-men, as pay a Duty equivalent to the Rent, for else Relics would in place of Liferents, take Tacks during their life for any imaginary Duty, which should not free them from the finding of Caution. In that case it was also found, that this Act did oblige Donatars of Liferent-Escheats, to find Caution to maintain the Houses, Orchyards, etc. which fall under his Gift; but quid juris, if the Fisk retain Liferents so fallen in his own hands, & peregr. de jur. fisc. tit. 1. num. 35. is of opinion, that usufructu sisco legato siscus non satisdat de utendo fruendo arbitrio boni viri; but it is hard that the Heir should be in a worse case by the Crimes of the Liferenter, or their going to the Horn, so that his Estate should be thereby exposed to mismanagment: and albeit where a Liferent is left to the Fisk, Caution may seem to be remitted by the intention of the Party, yet that should not be extended to the case of its falling to the Fisk, without his consent, and it rather seems, that since a Donatar is tied to find Caution, that therefore the Fisk should.  
Nota, There needs no precognition to be taken by an Assize of the condition the Houses were in conform to the 226 Act. Par. 14 I●. 6. For that Act only ordains such precognitions to be taken when Houses are ruinous within Burgh, and the Liferenters refuse to concur in Re-building them, in which case the Heretor is allowed to repair, he finding Caution to pay the Liferenters the Duty that these Houses paid formerly, March 23. 1626. Foulis contra Allan.  
Though this Act ordains the Sheriffs, and others who refuse to exact this Caution, to be liable to the Heretor of the Ward-lands, without mentioning that they shall be liable to Liferenters, or Conjunct-fiars, yet doubtless they are liable to them also for the damnage sustained, in not exacting this surety.  
Though in some cases cautio juratoria be allowed, yet it would not be allowed here Gail. lib. 2. obs. 47. for that Caution cannot secure the Heretor, and there is as little reason to receive it in this case, as in Remove. But Perez▪ is of opinion, that cautio juratoria is receivable si offerens sit probatae & honestae vitae.  
There was likewise cautio usufructuaria by the Civilians, & introducta est per senatus consultum in iis quae usu consumuntur, §. 3. just. de usufruct. & l. 1. ff. de usufructu earum rer. quae usu consume. But all this matter is learnedly Treated by Christin. ad Consuetud Mechli●. tit. 14. where he determines that the lesser and temporary expenses are to be bestowed by the Liferenter, but that she will get 〈◊〉 from the Heretor of these expenses, quae perpetuam rei utilita. tem concernunt, if she advertise the Heretor, that they were necessary, and first desired him to repair, but that she cannot by her Reparation alter the form of the thing, though for the better, nor use it otherways than the Proprietar himself did.  
By the former Act Ja. 4 Par. 3 cap. 25. to which this relates, the Liferenters are to find Caution that they shall not destroy the Orch-yards, Woods, etc. From which it may be observed, that where Woods are upon Liferented Lands, the Liferenter as well as the Conjunct-fiar, may make use of as much of the Wood, or Coal, as is necessary for her own use, since she is only restrained by this Act from wasting; and by the custom of some Country's, she cannot pretend Right to Trees fallen by Winds or accidents, if the Trees be such as are fit for sale, & in syluâ caedua ita in●isionem facere potest ut ad fructum pertineat non vere ad destructionem vid. l. ex sylva 10. ff. de usufruct. which agrees with our Law, by which the Liferentrix has only right to as much of the Coals or Trees as are necessary for her own use; but even this Right is only due to her, whilst the Land is the Fiars, but does not hinder the Fire to sell his own Land, Craig. pag. 189.  
FOrestallers are these who buy Goods before they come to an open Mercat; 
ACT 21.  and Regraters are properly only these who buy up all Goods, that they may sell them again at dearer rates. But our Law has used these two words promiscuously, though by this Act such as buy any thing before it be presented to the Mercat, or who buy it in the Mercat; but before the Mercat be proclaimed, which is called here the time of day of the Mercat, are punished as Forestallers; yet there must be something of design proven, as if they should stand in the way upon a Mercat day, or should every day cause buy up what were going to such a Town, to hinder the Traffic of that Town; for it were hard to make generally all who buy things going to a Town, or a Mercat Forstalling, for that may be done either ignorantly, or necessarily.  
Though the punishment here be Imprisonment and escheating of the Defenders Movables, yet by the 148 Act Par. 12 Ja. 6. The punishment is ordained to be forty pounds for the first fault, a hundred for the second, and escheating of Movables for the third; and though severals have been found guilty of Forstalling, as particularly upon the 9 of June 1596. and the 6. of August that year; yet I find no punishment followed.  
The Chamberlain of old was the only Judge in his Chamberland-air, cap. 35 Stat. Will. Reg. But now the Justices are only competent Judges to this Crime, they were called Dardanarii by the Civil Law, and were punished poenâ extraordinariâ l. 6. ff. de extraor. crim.  

ACT 22.  THis Act is innovated and enlarged by the Act i6 Sess. 3 Ch. 2 Par. 1.  
ALL Officers within Burgh are discharged to purchase Lordships out of Burgh, 
ACT 26.  lest they give dreadure to their Neighbours; by which they are as I conceive, discharged to be Lords of Session, or Lord Barons, or at least they lose their Offices how soon they attain to these.  
Each Burgh does to this day count in Exchequer for their Feu-dewty yearly, conform to this and other Acts.  
It was thought that a pursuit against the Magistrates of Edinburgh, for counting for their Common good upon this Act, was not competent at the Instance of a private Burgess, or of any save the Lord Thesaurer of the Kingdom, who comes in place of the Chamberlain Air, though it was said to be actio popularis, and a species of suspectae tutelae; but this would have given too great occasion to Faction, and would have discouraged Magistracy too much, nor are such popular actions in matters of Government to be easily allowed under Monarchy, though they are necessary in private Rights.  
THough this Act appoint such as trouble Burrows in using their Liberties, to be punished in Justice Courts, 
ACT 27.  as common oppressors▪ yet this is in Desuetude, except the oppression▪ be very attrocious; but the ordinary remedy is now, either by actions of Molestation, or declarator of Property before the Session, or by actions of Riot before the Privy Council.  
COlonel Borthwick having gotten a Gift of this penal Statute, pursued the Maltmen criminally thereupon; 
ACT 29.  which Pursuit was discharged by the Council 1672. upon a Bill, and these Statutes found to be in Desuetude, and impracticable in this age, wherein Malt cannot be sold for two shilling more than the price of the Boll of Bear, as this Act appoints.  
BY our Law, all single Escheats fall to the King, 
ACT 32.  for bona mobilia sunt allodialia, and hold not of the ordinary Superior, who has no Right, jure proprio, to the Escheats of such as dwell within his Territory: and thus Lords of Regality have only right to such Escheats by their Erection from the King. But the Liferent-escheats which fall either for civil or criminal Causes, belong to immediate Superiors respective, so that if a Vassal who is at the Horn, have Lands holden of many Superiors, each Superior will have right to the Land which holds of himself; for Feus' being given for service, and the Vassal being nullus in jure; by his Rebellion the Feu returns to the Superior, except in the case of Treason, in which it falls to the King.  
Observe from this Act, that the Lords of Articles are Judges to Processes in the first instance, but the Debate must be resumed to the Parliament.  
BY this Act Justice-airs and Courts are peremptor at the second Diet; 
ACT 33.  but by the Act 79 Par. 11 Ja. 6. they are peremptor at the first Diet, and parties not appearing now are unlawed if pursuers, and are declared Fugitive if Defenders, at the first Diet. Vid. observe. on Act 39 Par. 5 Ja. 3. supra.  
This Act relates to another Act of Parliament, dated the 10. of July 1625. but there is no Parliament amongst our Printed Laws of that date.  

ACT 34.  THough by this Act Depredations, Reiffs and Spuilyies, are ordained to be first civility pursued; yet the Justices use to sustain Criminal Pursuits for these causes in the first instance; except a defence be proponed upon matter of Right, as if the Defender alleged he had a Disposition, or other Right; and in these cases the Justices superceed to give answer to the Criminal Pursuit, till the Civil Right and Title be first discussed; and this the Privy Council uses to do in Riots pursued before them.   

King JAMES the fifth, Parl. 5.  

ACT 36.  AFter many Alterations observed by me in the Annot. on Act 65 Par. 3 Ja. 1. and Act 62 Par. 14 Ja. 2. at last the Session was established in the way it now is by King James the fifth, in this his fifth Parliament, and is ordained to consist of fourteen Lords, seven whereof were to be of the Clergy, or Spiritual; and seven Temporal with the Precedent, who was to be of the Clergy; but since the abolition of Popery, they are all Seculars or Laics, though sometimes Bishops were extraordinary Lords; and though this Act of Parliament appoints the half to be Spiritual, and the half Temporal, with a Precedent; yet by the 93 A●t 6 Par. Ja. 6. It is declared it shall be lawful to the King to present any able Person, whether he be of the Spiritual or Temporal State.  

ACT 37.  VId. observe, on Act 7 Par. 3 Ch. 2.  

ACT 39  THe present Lords are ordained to have all the privileges that the Lords of Session (for so they were called in the Reign of King James the second) had formerly; and therefore it is alleged, that since Appeals could not be received from them, that they cannot be received from the Lords of Council and Session, as was formerly observed, Act 62 Par. 14 Ja. 2.  

ACT 40.  THe Chancellor when present, is to preceded, and because he precedes, therefore he gives his Vote last; and because it was controverted, whether he was to be Precedent in the Parliament, therefore by the 1 Act 1 Par. Ch. 2. He is declared to be Precedent in all Courts, and he did preceded by virtue of this Act in Exchequer, till he was discharged by His Majesty by a Letter in anno 1663.  
These words, And sicklike other Lords as shall please the King's Grace to subjoin to them of his Great Council, who shall have Vote, to the number of 3, or 4. are all the warrant that there is for nominating the extraordinary Lords of Session, who cannot exceed 4. They are still named by a Letter from the King, as the ordinary Lords are, but they are not examined like them; and these extraordinary Lords are marked in the Books of Sederunt after all the ordinary Lords.  
THese words, And the Lords to subscrive all Deliverances, and none other, 
ACT 41.  is all the warrant that was for the Lords subscriving all the Bills for raising Summons before the Criminal Court, but I think these general words should be restricted, secundum subjectam materiam, as all general words in Law ought to be, for we see that notwithstanding of these general words, the warrants for raising Summons before the Privy Council are subscrived only by Privy Counsellors, and now the Justices are only in use to subscrive their own Bills, though the other Lords of Session are not excluded from that power.  
THis Act is the warrant that the Lords have for making Acts of Sederunt, which were so called, 
ACT 43.  because the Lords sitting are marked, Sederunt such and such men; but these Acts are to reach no further than the ordering of Forms of Process, or the regulating their own House, and therefore this Act says, For advising and making of their Rules and Institutes for the order of Justice; This same power is almost allowed by all Nations to their Supreme Judicatures, Vin. Comment. ad §. 9 Inst. lib. 1. tit. 2. Christin. Vol. 2. Decis. 51. num. 8.  
THis division of the Kingdom, in order to the calling Causes, 
ACT 44.  is now in Desuetude; for all Causes are now Enrolled according to the order of the returns of the Process, vid. Act. 16. Sess. 3. Par. 2. Ch. 2. Artic. 1.  
NO Session sits now on Monday, and so this Act is in Desuetude; Suspensions are called on Tuesday and Wednesday, 
ACT 45.  and ordinary Actions upon Thursday, Friday, and Saturnday.  
The Friday was allotted for the Causes of the King and Queen, and the Actions of Ministers and Strangers; but by the Regulations the King's Causes may be called on any day, the Party Defender being advertised 14. days before, of the particular day on which it is to be called. It has been doubted before this Act, whether the Queen's Causes should enjoy the privilege of the King's Causes; And the privilege is by this Act extended to her, & ita Augusti privilegia ad Augustam sunt extendenda, l. 31. ss. de Legibus.  

ACT 49.  NOw the Lords sit from 9 to 12. and they sit down sometimes before 9 as occasion requires.  

ACT 51  NOta, By this Act Parties were allowed to plead their own cause, and they needed not have Advocats, except they pleased, but no other Party not contained in the Summons can have liberty to speak; But the Lords can now hinder Parties to Plead, or force them to have Advocats, to shun confusion and nonsense. It seems also that though an Action be to a man's behoof he cannot be allowed to speak, except his name be in the Summons.  

ACT 52.  THe order of Tabulating Summons is now much altered, for no Summons are Tabulated except Actions of Declarators, Improbations, Contraventions, and other Actions at the King's Advocats instance, upon the back of which Summons he Writes, Tabuletur erga diem Veneris proximè sequentem, and except this be written upon it, the Action cannot be debated; and some think that if the Action be called without this, a Decreet thereupon pronounced would be null.  

ACT 53.  Witness are now examined by one of the ordinary Lords in the afternoon, as here, and that Lord who sat last Week in the Outer-house does the next Week Examine Witnesses.  
THe Quorum of the Lords by this Act is ten, either ordinary or extraordinary, 
ACT 57  for either make up the Quorum; but now eight Lords with the Precedent make a Quorum, which alteration proceeds from the 44. Act 11. Par. Ja. 6.  
Nota 1. By this Act that advising of Processes cannot be recommended to any particular Lord.  
Nota 2. That by this Act publication of Witnesses is allowed, else how is it ordained here that publication of Witnesses should be before the hail Auditor, and Advocats were allowed to see the Depositions, and to debate against them, till the year 1666. at which time this was discharged, upon pretext that Advocats did spend too much time in debating against the Depositions, and that Witnesses Depositions were more to be credited when no man was to see them, or know them, than when the persons interested were to see them, because it was probable they would take pains to please them: But we find great mistakes by not letting Advocats see the Depositions, since they might clear many things that seem inconsistent, and which depend upon other matters of Fact; and it's rather presumeable that Witnesses knowing that what they say is not to be seen, will take liberty to Depone too liberally, the not publication also of the Depositions tends much to make Judge▪ Arbitrary, since the warrants whereon they proceed is not known; and publication of Testimonies i● a kind of confronting Witnesses with the Parties, which is ofttimes very useful, and this publication is for these reasons allowed by the Civil Law, and in most Nations, vid. Marant. de processus publicatione, and in England in all cases, and is even with us allowed in some cases yet, as in Falsehood▪  
Clerk's to the Signet are now called Writers to the Signet, 
ACT 59  but their Fees specified by the next Act are innovated by the Regulations; at first there was but one Clerk of Session, who was called the Clerk of Council, as is clear by the 53. Act of this Parliament, and he was chosen per vices, out of the Writers to the Signet; but all the Writers to the Signet, or Clerks of the Signet, were at first admitted to be present at the decision of Causes, whereof this Act is a Vestige; Thereafter there were two Clerks of the Session, and at last three, but lest their number should increase, by an unprinted Act of Parliament, it was declared that they could not be more than three, notwithstanding whereof, in Anno 1661. The Register appointed six, whereupon the King by his Letter in Anno 1676. reduced them again to three, and now again there are six Clerks, as before the year 1675.  
IT is appointed by this Act, 
ACT 61.  that deliverance upon Bills presented to the Session be only Written by a Writer to the Council (that it to say, a Clerk of Session) and not by a Writer to the Signet.  
BY the last words of this Act it appears that an Advocate may be compelled to plead for any man, 
ACT 64.  except he can allege that he 〈…〉 employed for the other Party, or the like, etc. which is 〈…〉 the Civil Law, l. 7. C. de postulando.  
〈…〉 present practice Advocats and all remove at the advising 〈◊〉 the Cause, 
ACT 66.  though in England and France Causes are openly advised, which discourages very much all arbitrariness.  
THat Advocats should propone all their Dilators together the second time, is still ordered, but never observed; 
ACT 67.  for where the Dilators are of importance, or intricat, the Lords will allow them to be proponed separately.  
BY this Act such as misrepresent the Lords, 
ACT 68  or accuse them unjustly, either by a formal Process, or to the King,, are to be punished Arbitrarly by way of Action, for they are here appointed to be called before the King, but such as dishonour or lightly them, are to be punished by the Lords themselves; and the Lords are in use to send such as contemn them or their orders to the Castle, or Tolbooth, or to ordain them to crave pardon upon their knees, etc. suitable to the offence.  
The Lords are to this day free of Taxations, conform to this Act; but of late if there be no exception of them in the Acts imposing Taxations, they are in use to get a Letter from the King, declaring them free, though this may seem needless, because of 23. Act Par. 1. Ch. 1. and the 23. Act Par. 1. Ch. 2.  
Though the Precedency due to the Wives of Lords of the Session, or Advocats, be continued with them after their Husband's death, which we derive from the Civil Law, l, faemina 8. ff. de Senatoribus, yet immunity from Taxes is not extended to their Wives, Stockman. Decis. 65.   

King JAMES the fifth, Parliament 6.  

ACT 69.  THough regularly Crimes die with the Committers, and cannot be punished after their death, yet by this Act it is ordained that Treason may be pursued after the committers death, which holds only in Treason committed against the King's person and Commonwealth, that is to say, in perduellion, where there is a design against the Kingdom, such as raising War, bringing in Foreigners, etc. but holds not in simple Treason, or laese Majesty, such as are the keeping out of a Castle, or in offering to detain the King's Person Prisoner upon any private account, for the words against the King's Person, or Common-weal are copulative; neither does this Act hold in Statutory Treason, which are merely Treasons by virtue of a Statute, such as Stealing in Landed men, or Murder under trust, etc.  
In all cases where Treason is to be pursued after the death of the Committer, it is necessary to call the appearand Heir, because his right as appear and Heir, is to be forefaulted by the sentence; but though it is ordinarily believed that the bones of the Committer must be raised and brought to the Bar; yet this is not necessary.  
Nota, That the Common or Civil Law is a sufficient warrant to sustain Actions in this Kingdom, because of its great equity, except where the same is overruled by a contrary Law or Custom.  
The Civil Law to which this Act relates, is l. ult, ff. ad l. Jul. maj. Extinguitur crimen mortalitate nisi sorte quis Majestatis reus suerit. It has been much doubted amongst Lawyers how far the Delict or Crime of the Predecessor should infer Action against their Heirs, which may be resolved in these conclusions.  
1. That all corporal punishment expires with the Committer, nam noxa caput sequitur, instit. lib. 4. tit de nox, Act. 8. per tot. & §. 5.  
2. As to any Civil conclusion, & quoad interesse pecuniarium; the Civil Law did only sustain restitution against the Heir in two cases, viz. If either Litiscontestation had passed in the Defuncts own time, or if the Heir had got advantage by the Crime or Delict of his Predecessor, as if for instance, the stolen Goods, or the Money concealed by his Predecessor had remained with him, §. Non autem omnes 1. Instit. de perpet. & temporal. Action.  
3. By the Canon Law the Heir was liable to refound the damnage done by the Predecessor, though there was neither Litis contestation passed in his time, nor did any advantage remain with his Heir, cap: ult. ext. de sepult. cap. in literis ext. de rapt. And though the opinion of the Canonists seem to the Lawyers of this age more equitable, they thinking Litiscontestation but a subtlety, yet I conceive that there was very much reason for the Civil Law to require Litiscontestation, since if the Defunct himself had been pursued he might have alleged many things which might have defended him that were unknown to the Heir; as for instance, he might have alleged that the Sheep alleged to be stolen were intrometted with by the Owners warrant, and might have cited Witnesses who were present, which the Heir could not know, and yet our practice follows the Canon Law, as more conscionable.  
I find that in the 5. Council at Constantinople, it was after debate found that Origin and Theodorus might be Anathematised after their death, though Vigilius then Pope of Rome maintained, neminem post mortem condemnandum, and this occasioned a great Schism.  
There is interposed betwixt this and the next Act a distinct Act in the Black Impression, whereby the King and Parliament ordain several Acts passed in the last Parliament to be now pronounced and authorised by his Grace and the three Estates, which has been left out, because the way of authorising Acts now, is only by His Majesty's touching them with the Sceptre, and if they be Voted in a former Session, they may be touched without any new Vote or Act; but if they were passed in a former Parliament, they must have a Vote, else they cannot be called the Acts of the present Parliament.  
THe King here Revocked when he was in France, 
ACT 70.  and his Revocation is subscribed by a Notar, which was at that time sufficient, but his supplying the Solemnities by His Kingly power, was unnecessary, for the King cannot supply the want of Solemnities, either in his own or other men's Acts or Deeds, there is little in this Revocation different from what was in former Revocations, save that, 1ᵒ. The King Revocks all Tacks and Assedations made for longer space than five years; which Article is also repeated in the 31 Act Par. 11 Ja. 6. and the reason of it is, because there is too great a restraint laid upon the King, by these long Tacks, hindering Him thereby to improve His Property, or Casualty; for which Reason likewise, long Tacks set by Tutors, are not allowed, and though this may seem only to extend to Tacks set by Kings in their Minority; Yet by the same Reason, and upon the same Act, a Tack of the Customs set by the King in His Majority, to Fleming and Peebles, was Reduced before the Exchequer, November 17. 1634. because the Tack was set for seven years. 2ᵒ. The King here Revocks all Rights made by Him, by evil or false Suggestion, or by expreeming of a false Cause, though ordinarily false Narratives do not Reduce Deeds betwixt Majors; this Lawyer's terms ex suppressione veri & expressione falsi; and this article of Revocation, agrees with the Civil Law, Vid. tit. C. de precib. offerend. & tit. C. si contra jus vel utilit. public.  
His Majesty here Revocks all Tacks and Assedations made in his minority for longer space than five years, which is likewise a Clause repeated in all the posterior Revocations, and though it may seem, that no Deed done by a Minor in his Minority, is Revockable, except Lesion could be alleged; yet Craig is of opinion, that the very setting of a Tack is a Lesion, though it be not set under the true value, Minorem enim laedi puto quod rei suae liberâ administratione prohibentur lib. 2. dieg, 10.  
THe three Head-Courts to be held by Sheriffs, etc. conform to this Act, 
ACT 71.  are as follows; the first is upon the first Tuesday after the fourteenth of January, which is the first Tuesday after the twelfth day of Yule: The second Court is upon the first Tuesday after Law-sunday: The third is upon the first Tuesday after the twenty ninth of September, which is Michaelmas day; but now they need not writ any excuse to the King, or Council, if they be not personally present.  
This Act makes a difference betwixt such as owe suit and presence, and these who owe suit only; all such Barons and Freeholders' as owe suit and presence, aught to be present in these head Courts; but this Act determines not who owe suit and presence: and though the 2 cap. 2 Stat. Rob 1. Statutes that none owe suit and presence, but these who are expressly liable thereto by the●r Infeftments; yet by our present practice, Vassals of Ward Lands, and consequently of taxed Ward Lands, are also liable to compear in the Superiors head Courts, without any Citation, though they be not Cited; and though this be not expressed in their Infeftment, for hoc most, in the nature of their holding, but Vassals who hold ble●sh or ●eu, are not obliged to compear without Citation, except they be thereto tied by their Infeftment, March 12. 1630. Bishop of Aberdeen contra his Vassals. And by this Act also, the Infeftment is made the rule of compearance; these who owe suit only, are only obliged to send an able man to attend, and serve upon Inquests; and ordinarily Charters bear tres sectas curiae.  

ACT 73.  THis Act appointing Sheriff-deputs, and all other Deputes to be sworn yearly is in Desuetude.  

ACT 74.  THis Act appointing all Executions even of Letters, by warrant of inferior Courts to be stamped, was running in Desuetude, till it was revived by a Decision in January 1681. where an Execution proceeding upon a warrant before an inferior Court, was found not sufficient, because not stamped, and Horning and other Executions before the Lords were always null by way of action, if not stamped, July 2. 1630.  
This Act appoints that all Mayors and Officers shall have a Signet, bearing the first Letters of their Name, or some other Mark that shall be universally known: and therefore, though the Executions bear that they were stamped, yet if they do not appear to be stamped, the Executions may be quarrelled as null, especially if they be recent, even as Testaments were null by the Civil Law, if they did not appear to have formam insculptamque signi imaginem, l. 22. §. 6. qui testament. fac. but on the contrary, if the Executions bear not that they were stamped, they will not be valid, though they appear to be stamped, because another than the Messenger might have affixed that stamp, Vid. observe. on 33 Act Par. 5 Ja. 3.  
ALbeit this Act appoints all such as execute Sheriffs or Barons Precepts, etc. to leave Copies; yet it has been found, 
ACT 75·  that the execution of a Barons verbal Precept needs no Writ, but m●y be proved by Witnesses, But this was betwixt a Baron and his Tenants, where there needed no written Precepts; whereas this Act requiring written Executions, is only to be interpreted, ' where there are written Precepts, because it says they shall endorse their Executions; and there can be no Indorsation, where there is no written Precept.  
It is required by this Act, that the Executor should show the Letters, which are his Warrant, and that he should offer a Copy to the Servants, and yet both these are in Desuetude.  
This Act requires six knocks, and the affixing of a Copy upon the most patent Door of the Defenders Dwelling house, which the Lords found was only in the case where there could be no entry, but found that there was no necessity of knocking when the Door 〈◊〉 patent, and Servants found therein, December 11. 1679. Counte● 〈◊〉 Cassils' contra the Earl of Roxburgh; but it may be doubted still, whether six knocks be necessary where the Door is patent, but no Servants within, and the Act says only, that if they get no entress, they shall knock; though a man may be cited in an ordinary action, by a Copy left at the Inn where he stayed forty days; yet a man cannot be Denunc'd upon a Copy left at his Inn, which is so determined in odium of his Escheat, November 20. 1672. It has been doubted, whether a Messengers Execution, bearing that he came to the Defenders House, and was by force keeped out, so that he could not give a personal Citation; if in that case the Defender should be holden pro confesso, as personally apprehended, it being offered to be proven that he was really within, and some of the Lords were of opinion, that he should be holden as confessed, the Messenger proving that he was within; or if the Execution had born that he and the Witnesses had given a particular evidence of their knowledge of his being within. Othe●s thought that he should be holden as confessed, unless he could instruct that he was alibi, in regard of the Contumacy. But most resolved, that holding as confessed, being a solemn and important Certification, peculiar to Scotland that the assertion of the Messenger and his execution, should not be sufficient, nor put the Defender to allege alibi, but that warrant should be granted to cite at the Mercat Cross, with Certification to be holden as confessed, July 5. 1670. Lindsay and Swinton contra Inglis. This order of citing, first personally, and failying thereof, at the Dwellinghouse, was allowed by the Civil Law, l. 1. §. 1. ff. de lib. adgno. And all the●e practical questions are much cleared by Christ. ad leges Mechlin. lib. primo, tit. 1. articulo 14. in fine, where it will be found that the being holden pro confesso, is not a Certification peculiar to our Nation, for other places use it, as Brabant.  

ACT 76.  THis Act appointing all Notars to be examined by the Sheriff, and that the Sheriff keep a Book containing their Subscriptions, is in Desuetude.  

ACT 77.  THis Act appointing all Seasins upon Precepts out of the Chancellary, to be given by Sheriff Clerks and their Deputs, is declared by the 15 Act 18 Par. Ja. 6. to extend only to Precepts passed upon Retours, and not to Seasins passed upon other Precepts; and it is very observable, that though that last Act Narrats that this Act appoints such Seasins to be taken by Sheriffs and their Clerks, yet there is no mention here of Sheriffs, but only of Sheriff Clerks, and yet the Lords of Session do now find Seasines null, open exceptionis, except they be given both by Sheriffs as Bailies, and Sheriff Clerks as Notars.  
The Reason why Seasins upon Retours must be given by the Sheriffs is, because he is to answer for the Retoured Duty, for which he ordinarily takes surety when he gives Seasines, and at the delivery of the Precept, there is a Note made by the Director of the Chancellary in the Respond Book, bearing the sums for which the Sheriff is to take Surety, and he is to be Charged, and counts therefore yearly in Exchequer by the 99 Act 7 Par. Ja. 5. and 64 Act 11 Par. and 124 Act 12 Par. Ja. 6.  

ACT 79.  THis Act is in Desuetude since the Registers were introduced in anno 1617.  

ACT 80.  FAlsifying the King's Charter, or the Counterfeiting of it, was of old Treason, but the falsifying the Charter of a private person was only to be punished by Mutilation, R. M. lib. 4. cap. 13. and thereafter, by the loss of the Right Hand, Statut. Alex. cap. 19  
By this Act all Falsehood is punishable conform to the old Statutes, which are these I related, and conform to the Civil, and Canon Laws, and that was deportatio cum publicatione bonorum, l. 1. §. ult. ff. ad l. Cornel. de falsis, but because this Act relates only to false Instruments, therefore by the 22 Act Par. 5. Q. M. It is extended to all Evidents, but because both these Acts struck only against false Notars; therefore by the 22 Act Par. 23. Ja. 6. All Forgers of any Writs, and all who are in accession thereto, are to be punished, and Death is the ordinary punishment with us, though sometimes, if the matter be small, the punishment is lessened.  
As to false Witnesses, Vid. tract. Crim. tit. Falshood.  

ACT 81.  BY this Act there must be still Instruments taken in the hands of the Clerk of Court, if any be taken at all; but if the party be jealous of the Clerk of Court, he may take another Notar with him, and take also Instruments in his hands, after the form and manner prescribed by this Act.  
NOtwithstanding that by this Act no Commission can be granted to apprise Lands, or serve Brieves to any but to the Sheriff if heritable, yet it is ordinary now for the Lords to grant Commissions to their Macers, in both these cases, who are thereby made Sheriffs in that part, and this Act of Parliament being objected against Struans Service, 26 Feb. 1681. It was found to be in Desuetude.  
LEasing-making betwixt the King and his People, 
ACT 8●▪  is punished by tinsel, or loss of Life and Goods, by the 43 Act 2 Par. Ja. 1. And by this Act it is ordained, that such as make Leasings of His Majesty to his Barons and great Men, shall be punished in the same way as they who make Leasings to His Majesty of His Barons and Liege's, and though there seemed a clear parity of Reason for this, before the Act, and that eadem est natura & idem est affectus correlativorum; Yet our Predecessors would not extend Crimes by consequence, and by the 205 Act 14 Par. Ja. 6. The hearing and not revealing, and apprehending such Leasing-makers, is punished as Leasing-making.  
BY this Act there is an Indemnity granted under the name of a general Remission; 
ACT ●●.  but though in general Remissions and Indemnities there needs no extract be taken of the general pardon, yet here every man is to take an Extract of the Pardon.  
Nota, That though such as keep correspondence with Rebels after their guilt, be punishable as Traitors, yet here such only as kept intelligence with the Douglases, and with Kilspindie their ●am, which is an old word signifying Cousin, after the doom of Forfaultor against them, are declared punishable, and this seems just where the Crimes were not clearly understood by the people to be such.   

King JAMES the fifth Parliament 7.  
BY this Act there ought to be a constant Vicepresident in the Session, but this is in Desuetude; 
ACT 93.  for Vice-Presidents are chosen by the Lords in absence of the Precedent, and thus the Lord Stairs was chosen Vicepresident in Sir John Gilmor's absence, 1663. Likeas, though by this Act the eldest Lord is to be Precedent in absence of the Vicepresident, yet now in absence of the Precedent the Vote of the Lords elects him who is to Preside in his place.  
It is also observable that our Kings have been so jealous of suffering any Act of the Pope to have authority, without being ratified by them as Kings, that the Pope's Ratification of the College of Justice being thought convenient, because of the assignation of some Ecclesiastic Benefices, for its better support, the King does in this Act ratify and confirm the Pope's Ratification of the King's first Act.  

ACT 96.  Sheriff's, Stewards, etc. compear yet yearly in Exchequer, and make their Aeque, and the time of their compearance is in July, vid. supra obs. on Act 77. Par. 6. Ja. 5.  

ACT 104.  BRibing is expressly discharged by the 25 Cap, Stat. K. Will. and by the 22 Cap Stat 1. Rob. 1. They who take Lands to Champart, are to be in the Kings will, and lose their employment for all their life-time. Champart is a ●rench word, signifying a part of the Land controverted, so that whosoever takes part of the thing controverted, per pactum de quotâ litis, falls under that Law. By this Act whoever takes Rewards or Buds are punishable by tinsel of Honour, Fame, and Dignity; and by the 93 Act, 6 Par. Ja. 6. the taking by their Wives and Servants, which was here omitted, is punishable by Infamy, Deprivation, and Confiscation of all the Defenders Movables.  
By this Act, giving of partial counsel, that is to say, consulting, is declared a species of Bribing, though nothing be taken, at least it is punishable as bribing, so that it seems a Judge may not consult albeit he abstain from judging in that cause.  
These words, That he shall take no further Rewards nor Buds than is permitted of the Law, are set down to show that Judges may lawfully take the Quota allowed by Law to Judges, which we call Sentence-money, and the Civil Law Sportulae.  
The taking Bribes was in the Civil Law punished per l. Jul. repetundarum, l. 1, 3, 6. d. t. And the punishment was death, if Money was taken to pronounce a Capital Sentence, or Confiscation of Goods, and Banishment in other cases, l. 7. §. 3. eod. tit. but by the Doctors, and in our Law, this Crime is called Barratrie.  
Such as defame Judges as Bribers, are punished here as Bribers; but besides the poena talionis which is inflicted upon all such as murmur against Judges; there is likewise an Arbitrary punishment adjected, and either the King or his Council are Judges competent to the cognition of this Crime by this Act.  
Nota, That if a Spiritual Man murmur against any Judge, he has the privilege to be called before his own Judge ordinar by this Act; but this revocatio sori is not now in use since the Reformation.  
BAse Infeftments are these which are given to be holden of the Disponer, 
ACT 105.  which are valid Rights in themselves, though they never attain possession, for else they could not give good Interest to reduce the Rights that may hinder them to attain possession. These base Infeftments are introduced with us contrary to the principles of the Feudal Law, which allows no Feudal conveyance without the Superiors consent, and were introduced rather by accident than upon design. This Act upon which they are founded being introduced rather to suppress simulate Infeftments, than to strengthen base Infeftments, and the great privileges arising to them now, did insensibly grow from the favour which our Law showed always to lawful Creditors, even as the privilege of necessitating Superiors to receive Comprizers did.  
Base Infeftments, though yet wanting possession, are preferable to posterior Arrestments, but they are not preferred to posterior Life-rent Escheats, except they attained possession in cursu rebellionis, Feb, 21. 1667. Miln contra Clerkson; and before this Act of Parliament, 1540 they were still preferred to posterior public Infeftments: But by this Act it is statuted that public Infeftments clothed with Possession for year and day shall be preferred to base Infeftments not clothed with possession, though prior, which praesumptione juris & de jure, are by this declared to be simulate Rights.  
But though this Act requires that the public posterior Infeftment be granted for onerous Causes, yet a public posterior Infeftment, though gratuitous, will be preferred, 3 March, 1626. Law con. Balgownie. But this may be doubted because of this Act, and in that Decision the public Infeftment was preferred, because Inhibition had followed thereupon, for any Act that can take off the presumption of simulation, and which will make the Infeftment any way to be known, doth fortify the Infeftment, as well as if possession had followed; and so an Inhibition following upon the debt for which the base Infeftment was granted, will prefer that Infeftment to a posterior public Infeftment, without necessity to reduce ex capite Inhibitionis, and an Infeftment following upon an apprizing was without reduction ex capite Inhibitionis, preferred to a prior base Infeftment, though clad with possession, because the apprizing followed upon a debt whereupon Inhibition was served before that base Infeftment, the said 3 of March, 1626.  
And likewise, if other diligence was done, or the time was so short that a years possession could not be attained, than a Terms possession was sustained; or though there followed no possession at all, the base Infeftment will be preferred to a posterior public Infeftment interveening, before the possession could be acquired, 13 Feb. 1624. Possession likewise of a part of the Land sustains the Infeftment for all, but this should hold only in Lands erected in a Barony, or such wherein one Seizing may serve, 5 Feb. 1668. Ker contra Ker.  
Hope in his lesser Practics is of opinion, that in the concourse of two base Infeftments, the prior will be preferred in petitorio, though no possession followed thereupon, which seems to be reasonable, because before this Act of Parliament, jus illud obtinebat, and by this Act, Nihil quoad hoc est innovatum; yet the practicâ a base Infeftment is as null till it be clothed with possession, as an Infeftment à me is before it be confirmed.  
If neither of the two base Infeftments be clothed with possession prior in tempore est prior in jure.  
The Husband's possession was alleged to be the Wife's possession as to her principal, but not quoad her additional Jointure, 7 Decemb. 1664. Lady Craig contra Lord Louvre; and in our Law the Husband's possession is accounted the Wife's possession whether the Husband possessed by himself, or by Wodsetters, or Comprizers deriving right from him, though it was alleged that this was not the Husband's possession, they having possessed proprio jure, which privilege is not only introduced ob savorem detis, but because she could not possess, for which reason likewise a base Infeftment for relief is preferred to a posterior public Infeftment upon a Comprising, albeit the Cautioner was only charged to make payment, which was found a sufficient distress, 28 July, 1625. As also, after a solemn dispute, the Lords did prefer a prior base Infeftment for warrandice, though not clothed with natural possession to a posterior public Infeftment, 9 January, 1666. Brown contra Scot But here the Infeftment of warrandice was given simul & semel with the Infeftment of the principal Lands, so that there remains still a doubt as to Infeftments of warrandice given ex intervallo, but Infeftments for relief were not found sufficiently clothed with possession, by payment of the Sums for which they were granted as Infeftments of warrandice are by possession of the principal Lands, because it was alleged that it was more natural that the possession of one Land should clothe the Infeftment of another, than that possession of Annualrents should clothe an Infeftment of Land, and that there might be greater collusion in payment of Sums, than in possessing of Lands, because Creditors might alter their Sums, and take new Assignations, or retire old Rights, whereas no man could quite his principal Lands, 26 June, 1677. Cramond contra the Tenants of East-barns.  
But a Father's possession as Life-renter was not sufficient to prefer a base Infeftment given to the Son to a posterior public Infeftment granted to a second Wife, or to any Creditor the like in a base Infeftment granted by a Good-sir to his Oye by the Daughter, which was not found sufficient, being clothed with the foresaid Civil possession of the Good-sirs reservation of Life-rent to exclude a posterior public Infeftment, 17 of July, 1635. And this possession by the Husband, or Father, or Disponer, is called possessio per constitutum, and is not favourable in a competition with other Creditors, and therefore a Factory granted by the Father to the Son to uplift the Mails and Duties of Lands disponed, to be holden base by the Son of the Father, was not found sufficient to clothe the Son's Infeftment, though there were several Processes intented upon the Factory, 10 July, 1669.  
This Act requires natural possession, by labouring the Land, or Civil, by uplifting the Mails and Duties; and before Registers were invented, that kind of possession was only able to put their Creditors in mala fide, but though Civil possession hath been found sufficient, such as obtaining of Decreets, and payment of Annualrents, albeit the same had no relation to the Infeftment of Annualrent, but was only relative to the Bond whereupon the Infeftment followed; yet the setting of a Back-Tack by the accepter of a Wodset, hath not been found sufficient to maintain a base Infeftment, except payment of the Back-Tack-Duty had likewise followed, so that it appears that possessio Naturalis vel Civilis sufficit sed non illa quae a doctoribus dicitur civilissima, as is a Back-Tack.  
By this Act also, such as make double Dispositions to defraud their Creditors, shall be declared infamous, and shall be punished in their persons and Goods at the King's pleasure, and this punishment is extended against such as make double Assignations, and the 140 Act Par. 12 Ja. 6. bears, That no Duty shall be Disponed to two sundry persons, which is Crimen stellionatus by the Law, and though this Act does not make double Dispositions to be crimen Stellionatus, yet it is so in effect; but the Civil Law distinguisheth thus, l. Quin. duobus ff. ad l. Corn. de falso Qui rem unant duobus vendidit dicens rem esse suam tenetur falsi, at si non dicat esse suam tenetur Stellionatus.  
Though by this Act Superiors receiving double Resignations are guilty and punishable as said is, and seeing to receive such Resignations, is a great prejudice, because it puts the Parties to great expenses, and that the Superior is presumed to get, and may get advantage by accepting such double Resignations, or contributing to the making of such double Rights, therefore they ought likewise to be liable in Damnage and Interest to the Party injured.  
BY this Act it is Statuted, that a Charge to enter Heir, 
ACT 106.  may be directed against the Successors of the Defuncts (they being of perfect age) to enter to their Lands, within forty days, Year and Day being first passed, after the Decease of the Predecessor, and a Comprising being led upon their failying to enter, the same shall be as valid as if they were Infeft.  
Nota, Though this Act bears the being of perfect age, yet Minors may be validly charged to enter Heir de practica; but seeing this Act is only made against such as may enter, but wilfully lie out: It might have been doubted whether Minors in Ward-Lands may be Charged to enter Heir, for these cannot enter till they be twenty one years complete; but by our constant Practic they may be Charged, since this is necessary for completing the Creditors Diligence.  
Nota, That this Act does not appoint that generally such Execution should pass against the appearand Heir, as if he were entered, but only that his Land may be apprized; and therefore quaeritur what execution may be gotten against his movable Heirship, and it may be urged that the same may be affected, as the Defuncts other moveables; for though they be Heirship, respectu haeredis, yet they are but moveables respectu Creditoris, for they become only Heirship after they are drawn; and yet it hath been found, that the moveable-heirship may be adjudged, and by that Decision it would appear, that they can only be affected by apprising; but there is a Warrant wanting in this Act for apprising them; there is an Act of Sederunt anno 1613. allowing Charges to enter Heir, to be raised within the Year and Day, but the Summons thereupon must be execute after the Year and Day expire, but not till the forty days expire after the execution of the Charge; but this annus deliberandi, being introduced in favours of the appearand Heir, he may omit the same, and Renunce within the year if he pleaseth; Neither can an Adjudication following within the Year be challenged ex eo capite, July 14. 1631. albeit that the said Act appoints, that a Charge to enter Heir may be raised after Year and Day expire, after the Defuncts Death; Yet the Year and Day must only be computed from the appearand Heirs birth, if he was posthume Spots. tit. Heirs, Livingstoun contra Houlerton, & de jure civili posthumus non habetur pro nato cum de incommodo ejus agitur l. etiam §. Ille, ff. de minor.  

ACT 111.  THough the meaning of this Act seems to be, that where Tradesmen, who are Freemen, either desert their work, or delays the same, the Owner of the Work may choose other Freemen, or complain to the Deacon; Yet it was found in July 1675. by the Council in the case of Borlands against the Masons of Edinburgh, that where a Free man either deserted or delayed, the Owner of the work might employ any, even Unfree-men; though it was alleged, it was not just to punish all the Freemen for the fault of one; Nor was it convenient for the Commonwealth, that Unfree-men should be admitted, for whose work none can be answerable.  

ACT 116.  THis Act is Verbatim, formerly set down, Act 90 Par. 6. Ja. 4.  

ACT 117.  BY the Civil Law, Testaments and all Writs of importance were to be Sealed; and with us the appending of the Seal without the Subscription of the Party was sufficient, R. M. lib. 3. cap. 8. num. 3, & 4. and Papers were then Tried by comparison of Seals, as now by comparison of Subscriptions; but by this Act the Subscription of the Party and Witnesses is likewise to be added with the Seal, and thereafter, K. Ja. 6 Par. 6. Act 80. all Papers of importance are to be both Sealed and Subscrived; but now they need only be Subscrived without being Sealed; and though by this Act, the Subscription of the Notar is sufficient; Yet by that Act two Notars and four Witnesses are requisite, where the Party cannot Write.  
By the 4 Act Par. 9 Ja. 6. Writs that are to be Registrated, need not be Sealed, but there is no express Law dispensing with Sealing, as to other Papers which need no Registration, so that the not Sealing is in these warranted only by uncontroverted Custom.  
FIre-rising, and ravishing of Women are to be put under surety, 
ACT 118.  as Mutilation and Slaughter, by this Act; From which, some concluded that Mutilation was punishable as these Crimes were; but the Act appoint not the punishment to be the same, but the way of finding Caution to be the same, and by the old Law, Stat. Rob. 2 Cap. 11. Mutilation is to be proceeded against as Murder; but yet licet redimere vitam, and it is not declared there punishable by Death, and in all the Journal Books, no man was ever punished with Death for Mutilation; the punishment being ordinarily confiscation of Movables, and Assythment to the party; nor see I any warrant for Confiscation of Movables, since the Crime is not punishable by death, nor any express Statute to warrant Confiscation; I find that Mutilation is inferred upon the cutting of a Thumb or Finger, though digitus was alleged not to be membrum; but pars membri, June 27. 1677. and it was formerly found, July 15. 1642. Chain contra Mowat; but though this may infer Mutilation; Yet I conceive it would not infer Dismembration, Vid. observe. on 28 Act 3 Par. Ja. 4.  
BY this Act all the Liege's may sell Flesh's on Sunday, Monday, 
ACT 122.  and Thursday, but thereafter all Mercats being discharged on holidays, there is an Act of Town Council, ordaining these Landward Fleshers to bring in their Flesh's only on Tuesday, Thursday and Saturnday, and not to sell in pieces, but in Quarters, which is confirmed by a Decreet of the Session, July 7. 1595. and ratified in the Parliament, 1681.  
FRom this Act it is clear that the Acts of Parliament cannot be reprinted without the King's special approbation even though the Lord Register consent; 
ACT 127.  for else why needed the Register get a Warrant by this Act, and the Custom alwise is, that the Register gets a special Warrant for that effect, and the Council the 17 of November 1681. found that the King's Printer having reprinted the Acts of Parliament without such a special Warrant, the Copies were Confiscable and should be burnt, and the reason of this is, because of the great danger that may arise from the wrong Printing of Acts of Parliament, the difference of a word altering the sense to a contrariety; but yet it seems the Register should have liberty to Re-print them, since he is answerable for all the Errors; and therefore we see that the Register used still to subjoin his Subscription to the Acts he Reprints, as is to be seen at the end of the 15 Par. Ja. 6. where Sir John Skeen's ordinary Subscription is set down at the end of the Acts which he Reprinted; and Sir John Hay's at the end of the first Parliament, Ch. 1.    


Q. MARY. Parliament III.  
ALL the Acts of this Parliament except the first, are Temporary, for encouraging of such as were to hazard their Lives in that Army, and are renewed fully by three equipollent Acts, viz. Acts 41, 42, 43, Par. 2 Ja. 6.  
BY this Act Churchmen are to have Right to the Fruits on the Ground the year they die, 
ACT 4.  and to the Annat thereafter; and from this it is to be observed, that the Annat was a Casualty that befell by and attour the Fruits that were on the Ground, which belonged to the Churchmen jure proprio; and formerly the Churchmen had right to all the Fruits of the year, if he survived the first of January; for in beneficiis annus inceptus habetur pro completo; but if he survived Michaelmas, he had right to that whole year, jure proprio, and the half of the subsequent year, jure annatae; But now by the 13 Act 3 Sess. Par. 2 Ch. 2. If the Incumbents survive Whitsunday, they have right to the preceding half year by their own right, and to the next half year by their Ann; but if they survive Michaelmas, they have right to the whole year (viz. from January to January) by their own Right, and to the half of the other year as Ann; and though it may seem incongruous, that a Minister living till the last day before Michaelmas, gets no more than he who lives till the day after Whitsunday; Yet this is regulated in this case, as it is in all Liferents, and this is allowed them for the support of their poor Families, for that Act declares that the same shall belong to their Executors, without necessity of a Confirmation; and though this Act declares, that the Ann is to belong to their Executors, yet in effect that is not well expressed, for it belongs to their nearest of Kin and Wife, though they be not nominated, nor Confirmed Executors. If there be Bairns the Ann is equally divided betwixt them and the Wife; but if there be no Bairns, it is divided equally betwixt the Wife and nearest of Kin, she having right in that case to a half, and not to the whole, because the Ann was of old introduced in favours of the nearest of Kin, as appears by this Act, for Churchmen had no Wives under Popery, when this Ann was introduced, June 24. 1663. Elizabeth Scremgeor con. the Executors of her Husband.  
Though this Ann falls to Bishops and Ministers, who die Incumbents, yet it belongs not to such as renunce voluntarly their Benefices, as was found in Bishop Lightoun's case; and neither Manse nor Gleib fall under the Ann, for the last Incumbents Executors have no right to the Gleib, except the same was Sown before his Decease, July 6. 1665. Colvil contra the Lord Balmerino.  
The reason why Michaelmas, and not Martinmas is made the Term in this case is, because Ministers Stipends are payable out of the Teinds, or by somewhat which is come in place of them; and therefore Michaelmas should have been the ordinary Term, and generally in payment of all Stipends, the Terms of Whitsunday, because the Sowing is then ended, and Michaelmas, because the Corns are then separated from the Ground, are the legal Terms for payment of Stipends.  
The foresaid Act allows an Ann to Bishops, though the Act of the General Assembly, and the King's Letter in anno (by which Ann's were first established as they now are) did not mention them, and under the Bishops Ann falls only the Quots of such Testaments as were actually Confirmed in his Life-time, or during his Ann, July 6. 1676. Captain Wisheart contra the Bishop of Edinburgh: By the Canon Law, the Annat was a quota payable to the Pope and College of Cardinals, by every Intrant, out of his Benefice, Vid. Tush. concls 329. But a Casualty like ours is payable in the Protestant Churches of Germany, Vide Carpzov. jus consistoriale tit. de decimis. It may be doubted whether that Maxim annus inceptus habetur pro completo, does yet hold good in other Beneficiary cases; for though it be altered by Act of Parliament, quoad Annats; yet where there is no Act of Parliament, why should not the old Rule hold. But I rather think that the Act extends to all Beneficed Persons, albeit the Rubric mentions only Bishops and Ministers, and so there are two Errors in the Rubric of the said 13 Act, one, in that it mentions only Bishops and Ministers; another, in that it mentions only their Executors, and not their Relict, or nearest of Kin; and the Rubric should have born, Act Regulating the Ann of Beneficed Persons, which shows also how weak the argument is, a rubro ad nigrum.  
The ancient Bishops allowed sometimes the uplifting of the first years Rents of Benefices, for assisting Christian Princes against Infidels, but the Popes thereafter reserved them to the use of the Roman See, upon pretext to supply the general necessities of the Church. Pope John 22. extravag. suscepti. de elect. was in this followed by Boniface the 9 who stated them in an ordinary Revenue, till the Council of Basil opposed the same; and still many Learned Doctors of the Romish Church itself condemned them as Simoniacal, whereupon the French Kings did by Concordats, force the Pope to pass from the same in France. They were called Annats, Ann's, or Annals, because they were fructus primi anni; and it seems with us, they were not at the Pope's disposal absolutely, else this Act of Parliament could not have disposed upon them. But it seems our Kings have in Parliament assumed to themselves, what others settled by Concordats with the Popes, as may appear in all the Regalia throughout the whole old Acts of Parliament. The whole Doctrine of Annats is excellently Treated by Antonius Nassa de materia annatarum.  
But I conceive our Ann which is a half Years Stipend, comes from the Saxon reformed Church, wherein ultra Salarium quod defunctus Aecclesiae minister promeruit ex singulari beneficio viduae ac liberis dimidius gratiae annus assignetur Carpzov. Jurisp. Consistor. lib. 1. tit. 12. It was introduced there in anno 1580. a little before King James introduced it here by the Letter to the General-Assembly in Montrose.  
BY this Act, such as did die in that Army were to have their Ward, 
ACT 5.  Non-entress, Relief and Marriage freely from the Queen.  
It is observable, that though usually such Acts are made when our Armies are in procinctu going to Battle; and though the King nor his Exchequer seek no advantage by Casualties in such Cases, yet regularly it is no Defence in Law against a Ward or Marriage, that he by whose Death they were sought, were killed in the King's Service.  
THough where there is a Governor, 
ACT 6.  the style of Acts of Parliament made by him, is, The Governor with the advice of the three Estates; Yet this Act says, by the consent of the Governor, and the consent of the Noblemen, both Spiritual and Temporal; By which words also it is clear, that the Lords of the Clergy are to be accounted as Noblemen, and so are to find Caution under the same pains as Noblemen, and to pay public Burdens as Noblemen, etc.   

Queen MARY, Parliament 4.  
BY this Act, these who are Excommunicated, 
ACT 7.  and continues so for a Year, for any cause, lose their Movables, Creditors being first paid; and by the 3 Act 20 Par. Ja. 6. They are to lose their Liferent-Escheats, if they be Excommunicated for Religion, Vid. supra. observe. on 9 Act 4 Par. Ja. 5.  

ACT 8.  VId. My Criminal Tract. tit. Treason.  

ACT 9  THis Act inflicting the pain of Death, and Confiscation of Movables, upon such as shoot at Dear Wildfowl, or Wild-beasts, is deservedly in Desuetude. Vid. infra observe. on Act 51 Par. 6 Q. Marry.  

ACT 10.  THis Act and the Instructions subsequent to it, were but Temporary Remedies, for repairing Lands burnt at that time by the English Invasion; But though only Parliaments can regularly invert Property, yet the Privy Council do force Heretors to sell burnt Tenements, if they will not repair them themselves, to the end other Heretors, and the public advantage of the Burgh may not be prejudged; and this the Council did in anno 1675. when all the Houses near the Parliament Closs were burnt, and this is conform to a power granted by the 6 Act 3 Sess. Par. 1 Ch. 2. by which it is appointed that the Provost and Bailies may Charge all persons who have the property of such ruinous Lands, to repair them within Year and Day, and if they refuse, the Magistrates may value and sell, Vid. observations on the 226 Act Par. 14. Ja. 6.   

Queen MARY, Parl. 5.  

ACT 11.  THis Act as to the prices of Wine is in Desuetude, but not in so far as concerns the mixing of Wines, which by the opinion of the Civilians is a species of Falsehood, and is punishable as such, Carpz. de falso.  

ACT 16.  THis Act against abominable Oaths is enlarged, Act 103. Par. 7. Ja. 6. Vide my Crim. observ. Tit. Blasphemy, §. 6.  

ACT 17.  THis Act against perturbers of the Kirk is enlarged, Act 27. Par. 11. Ja. 6. For that Act reaches all tumults in Kirk-yards, and the punishment in that Act extends to confiscation of all the offenders Movables. It is observable from this Act, that Children are only to be scourged for such Crimes, minority lessening the punishment, and all within 14 years are accounted Children.  

ACT 19  VId. Crim. obs. Tit. Bigamy.  

ACT 20.  VId. Crim. obs. Tit. Adultery,  
VId. Crim. Tit. Falshood.  
NOtars are still according to this Act examined and admitted by the Lords, but are not presented by the Sheriffs; 
ACT 22.  for now they are presented by the Clerk to the Notars, who gives in a Bill for them to the Lords.  
By this Act the Instruments of such as exerce the Office of Notar, 
ACT 24.  not being lawfully admitted, are null, but yet if the pretended Notar was habit and repute a Notar, his Instruments will be sustained.  
Such as usurp the Office of Notars are punishable by this Act as Falsaries or Forgers, yet I never observed that for this Crime death was inflicted upon them.  
Nota, It is observable from this and many other Acts, that the Acts are called the King's Laws, and not Laws made by the Parliament, and the Act related to, made by King James the 5. but not condescended upon here, is the 81 Act Par. 6. Ja. 5.  
IT is observable from this Act, 
ACT 25.  that the Secret Council used by their own Authority to make Sumptuary Laws, both as to Meat and Clothing; and by the Act of Council here related to, the contemners of the said Act of Council are to be punished in their persons and goods at the Lord Governors will; and yet one of the accusations against the Earl of Middleton was, that the Lord Lorn being found guilty of Treason, the time of the Execution was referred to him, as being then the King's Commissioner, which it became no Subject to accept.  
PRinting is Inter Regalia, and so the King may discharge any man to Print without his Licence, 
ACT 27.  vide Fritch. de Typographiae abusu, where he makes the regulation of the Press to depend upon every Magistrate by the Law of Nations, and Printing may do as much mischief to the Government as Arms, and so the Magistrate should have the command of the one as well as of the other, though I know it is most unjustly pretended by some Republicans, that Printing being a Trade, no man can be debarred from the free use of it, except by Parliament, in which their own consent is employed: We see also that the King allows his own Printer only to Print Bibles, and other School Books, etc. vide Act 25 Par. 11 Ja. 6. against the Sellers of erroneous Books.   

Queen MARY, Parliament 6.  
IT is observable that this Revocation of Q. M. was under the Privy Seal, 
ACT 28.  whereas other Revocations are only under the King's Hand, it differs in nothing else from the other Revocations.  
IN the first part of this Act, Reversions which were formerly, 
ACT 29.  as all other Writs sufficient, if sealed by the granters Seal, are declared null, if they be not Sealed and Subscrived, and though it is here declared that if the Party cannot Subscrive, a Notar may Subscrive for him; yet by the 80 Act Par. 6 Ja. 6. it is requisite that there be two Notars and four Witnesses, in matters of importance, or heritage, where the Party cannot write.  
By the second part it is declared that all Reversions are null if they be not Registrated, except Reversions of Land within Burgh, which need no Registration, and this is again enacted, Act 16. Par. 22. Ja. 6. By this Act Reversions taken by way of Instrument in the hands of the Notar that gave the Seasine, are as valid as Reversions subscrived by the Party himself, and Registrat; for according to the Law then standing, Reversions were sufficient, if subscrived by one Notar, though the Party did not subscrive, and Instruments taken in the hand of the Notar that gave the Seasine were as sufficient as a Reversion under a Notars hand; but since that Act all Reversions both without and within Burgh should be Signed by the Party himself, or by two Notars, and no Reversion within Burgh needs to be Registrated, 11 Feb. 1681. Irwine contra Corsen, which being found inconvenient, was thereafter first corrected by an Act of Sederunt, Feb. 22 1681. and now by the 11 Act, 3 Par Ch. 2. By which they are ordained to be Registrated in the Town Clerks Books within 60 days after the date thereof, except they be incorporated in the Body of Rights.  

ACT 31.  THough this Act runs only against Committers of Slaughter, yet it holds in all Criminal Causes.  

ACT 32.  IF any man be out of the Country, he must be cited upon 60 days, but if he was in the Country the time of the first citation, it is sufficient by this Act that he be cited upon 15 days; and though this Act says, that if he was eight days cited before his departure, he may be cited upon 15 days to the second diet; yet it holds if he was in the Country at the first Citation, though he went immediately out of the same.  

ACT 33.  VId. Crim. obs. Tit. 21. of Libels, Part 2.  

ACT 34.  VId. Notes upon Act 77. Par. 6. Ja. 5.  

ACT 35.  THe form of citing the nearest of Kin is now introduced in the choosing of Tutor's Dative by the Exchequer, and is established most justly by the 2 Act, Sess. 3. Par. 2. Ch. 2. though formerly the King might have granted Tutories Dative, without any citation of the nearest Kinsmen.  
Nota By this Act it is clear that a Curator cannot by a private Renunciation of his Office free himself, but he can only be freed by the Judge, for though by the Civil Law Tutors and Curators were forced to accept, yet by our Law they are not, but if they once accept, or administrat, though without a formal acceptance they are still liable from the date of their administration, and not from the date of their nomination, and that which was at first voluntary becomes necessary.  
THough this Statute anent Lentron be renewed, 
ACT 36.  Act 221. Par. 14. Ja. 6. and that the Council used lately to grant Dispensations, yet these Penal Statutes concerning Lentron are now in Desuetude.  
VId. observe. on Act 36 Par. 8. Ja. 2. and on Acts 68, 
ACT 37.  and 69. Par. 8. Ja. 3.  
THese Instruments of Resignations are not only to be Sealed by this Act, but to be Registrated, by the 3. Act, 
ACT 38  Sess. 1. Par. 2. Ch. 2.  
ALL Warnings are by this Act to be made only upon 40 days, 
ACT 39  which holds, though the Party be out of the Country, because the Act is general, though in other cases a Party out of the Country must be cited on 60 days, 20 Feb. 1666. Mcbrair contra Crighton; and yet though this Act be general, there needs no formal Warning conform to this Act from a Tower or Fortalice (turris pinnata) even though the Possessor had a Tack; Nor in Lands Liferented, for in these the Heretor will get upon a Bill Letters from the Lords, charging the present Possessor to remove upon 6 days, because Towers and such Houses belong not to Labouring, nor are useful for it; and this Act was made in favours of Labourers, and it were unreasonable that the Heretor, after a Liferentrix is dead, should be put to all these delays for removing those who possess by a right, that is ipso jure expired.  
These words of this Act appointing Warnings to be made, either Personally, or at their dwelling Houses, and at the Ground of the Lands, are so to be interpreted, as that there must be still a Copy left upon the Ground of the Land, or at his dwelling House, and upon the Ground of the Land, which citation upon the Ground of the Land, was, as it seems, made necessary, because in all real Executions, quae praedia tangunt, Copies must still be left upon the Ground, and to the end that all who pretend to have real Rights, and even Sub-tennents may be thereby certiorated, 25 Feb. 1680. Craw contra Craw.  
Because this Act ordains all Warnings to be made 40 days before Whitsunday, and speaks not of another Term, therefore the Warning must be made before Whitsunday, though the person warned be not obliged to remove by his Tack till the Martinmass, but Execution must be superseded till then, vid. 8 July, 1626. and 16 December, 1628. Fowls contra Tenants, and Inglis contra Tenants, 15 June, 1631. Ramsay centra Weir.  
Though this Act appoints these Warnings to be made at the Kirk doors of the Paroch within which the Land lies, yet the Lords have sustained Warnings to be made at that Kirk which was reputed the Paroch, and where Warnings were used to be made, though it was not truly the Paroch Kirk, 24 January, 1667. Earl of Argyle contra Campbel; and though by this Act such Warnings should be read in time of Divine Service (that is to say, immediately after Sermon) yet they sustained the Warning, the Execution bearing, that it was lawfully used, and the user mending his Execution at the Bar, 25 of January, inter eosdem.  
Though the reasons of Advocation here expressed seem to hold only in actions of removing, because they are annexed to this Act, yet they hold generally in all Advocations, vid. my Crim. observ. Tit. Advocations; and though the privilege granted to Advocats here of being only pursuable before the Lords may only seem competent in remove, yet it is extended to all cases, and now they may Advocate any Action intented against them before inferior Courts.  
I find that the Advocats of Vtright have the same privilege, Rub. de Advocatis, Art. 13. vide Voet. de statutis, Sect. 7. cap. 3. num. 16. where likewse he determines that this privilege of exemption extends not to Criminal cases, but that in these they may be pursued before inferior Judges, for these are not properly comprehended under the word Actions, nor are Statutes to be extended de casu in casum.  
THis Act is Explained in the observations upon the 32 Act Par. 2 Ja. 1. supra. and 11 Act Par. 1 Sess. 3 Ch. 2. 
ACT 40.   

ACT 41.  VId. crim. obser. tit. Pursuers.  

ACT 42.  OF old when any Right was quarrelled as null, the nullity was sustained by way of Exception or Reply, and a day was allowed to the Defender to call his warrant, that is to say, the person who was his author, and who was bound in warrandice; but now few Nullities are regulariter received by exception, but by way of Reduction, to the end the Authors may be called, who may defend him; and ordinarily the Defender intimats at the Bar, the pursuit to his Author's Advocats, to the end they may defend him, and if they do not, they are liable in an action of Eviction for damnage and interest; but the old form of calling Warrants is in Desuetude.  

ACT 43.  THough Bonds of Man-rent are hereby discharged; yet former heritable Bonds are excepted.  

ACT 47.  VId. crim. observ. tit. Falshood. num. 8▪  
IT is observable that there needed a particular Act of Parliament for cutting down the Wood of Falkland, because as I think, 
ACT 48.  the Queen was then a Minor, and it was to be cut down by the Regent, and the Regent being but a Tutor, it has been thought he needed a Decreet or Act of Parliament for his warrant, even as the Tutor of a private party, cannot alienat his Pupils Lands, without a Decreet of the Lords of the Session, and it may be argued from this Act, that though a Wood be old, yet it cannot be cut down by a Tutor, without the warrant of a Judge; for this Act bears, that this Wood was old and ready to perish. It may be likewise doubted, whether since the King's Parks are a part of the annexed Property, the King, or any having Right from him may cut down the Wood without an express Act of Dissolution, or other warrant from the Parliament, since the King is only but a Liferenter of the annexed Property, and a Liferenter can only cut down what is necessary for his own use. But since Woods would perish if they were not cut, I think there needs no previous Dissolution.  
THough by this Act, 
ACT 52.  Deacons are Discharged as tending to Sedition, and Visitors appointed to be chosen in their place, yet the very next year, the same Queen Mary allows Deacons to be chosen by a special grant to the Craftsmen of Edinburgh; because, as that grant bears expressly the Act was never in observance, and since the making of it, it was found by experience, that Deacons were necessary in Towns; from which it may be argued, that when a Law is found absolutely inconvenient, the King may dispense with it till the next Parliament, especially where the Law had never been observed; But I think the speciality of that grant lies in this, that this being an Act of Parliament relating to Government, and made for the security of the Crown, the Monarch may use it, or dispense with it as he pleases, as every person may dispense with what is introduced in his own favours, though to this it may be answered, that what is introduced for the good of the Common-well, as the Act bears this was, cannot be dispensed with, without the consent of the three Estates; To which it may be Replied, that matters of Government do not concern them directly, but by consequence, Government being the interest of the King, as Property is of the Subject.  
THis Act is enlarged by the Act 156 Par. 12 Ja. 6. by which the Lords of Session are ordained to grant Letters summarily on six days, against such as stop Highways. 
ACT 53.   
THis Act is Explained in the Act 13 Par. 2 Ja. 4. 
ACT 56.   
THough by the 5 Act 2 Par. Sess. 3 Ch. 2: 
ACT 57  The burgh's of Regality or Barony; are allowed to bring home Timber, Iron, etc. as the return of the native Commodities of the Kingdom; yet it was controverted if they might bring home Salt, and it was found that they could not bring home Wine, nor Salt, nor Brandy, even as the return of their native Commodities, so that none can Trade in these save the burgh's Royal.  

ACT 58.  THe Acts here related to, are the 60 Act 7 Par. Ja. 3. and 13 and 14 Acts Par. 4 Ja. 5. which declares the breaking of Dovecots, Parks, and Ponds to be Theft, and upon the 25 of July 1623. Raith and Dean are ordained to be hanged for breaking of Yards, stealing of Bees-skeps and Sybows; and it was Theft by the Civil Law, lege Pomponius 8. par. Pomponius 1. ff. Fam. erisc. Vide Crim. observ. tit. Theft, num. 15.  

ACT 60.  THis Act against the speaking evil of the Queen's Grace, or Frenchmen, was made when the Frenchmen came over to assist the Queen against the English; and though it be Temporary quoad the French; yet it is still a standing Statute quoad our Monarches, and it is observable by it, that the hearers of false Reports against the Queen, and not reporting the same, are punishable as the principal speakers, but it may be doubted, if Hearers are obliged to Dilate, when they cannot prove.  

ACT 61.  THough this case in so far as concerns these Temporary Pleys have now no force, yet that part of the Act appointing Women and others, who make perturbation in the passage to Towns is still in observance, and the punishment is by our practice arbitrary.   

Queen MARY, Parliament 7.  
BY this Act the Judge is allowed to exact Caution from such as propone Improbation, 
ACT 62.  and this Act was found to extend as well to exceptions of Improbation as to actions of Improbation; and though it appoints Caution only to be found, yet the Lords ordain oftimes the Money to be Consigned, and forty pound is the ordinary Sum, and sometimes they sustain cautio juratoria, where the party cannot find Caution, but this cautio juratoria, is never allowed, except where there are previous and strong presumptions of Falsehood, or else the Liege's might be extremely vexed, ordinarily the same day is appointed by the Judge for the proponer of the Falsehood to consign, and for the producer of the Writ to bide by the same, like to these Consignations, were the Sponsions mentioned in the Civil Law, whereby Litigators sponsionem faciebant certae pecuniae quae ejus lucro cederet qui judicio vicisset l. paen. ff. de alcae toribus l. 17. §. ult. ff. de prescript. verb.  
Nota, By this Act where Improbation is proponed at the King's instance, the informer is to find Caution, but if the King's Advocate insist, ad vindictam publicam, I conceive he is obliged to find no Caution, because he is never presumed to pursue Calumniously.  
WHen any thing is to be proven by Writ, 
ACT 63.  if the Writ be not produced, this Act appoints that Protestation shall be given against the probation of that part of the exception; but now the form is to call upon the Act, and crave Circumduction of the Term, which circumduction is here called Protestation, but if the Writ be produced, this Act appoints that the other party shall be heard against the same, after Renunciation of probation, and the form is, that when any Writ is produced in modum probationis, the other party protests to be heard against the same, at the advising of the Cause, and the producer puts up an Act renuncing further probation.  
THis Act appoints the expenses of Plea to be Taxed, 
ACT 64.  and insert in Decreets, which is conform to the Ch. 68 and 69. Quon. Attach. and though by the Civil Law, expenses of Plea ought not to exceed the principal sum pursued for, Bart. in l. 8. Cod. de indiction: Yet I have seen more expenses allowed than the sum pursued for, extended to, and it were very unjust, that if a person of quality were pursued unjustly by a mean Rogue, for a small matter, that his expenses should not be determined according to what he was really forced to expend, for the necessity of expending is the only just rule in such cases.   

Queen MARY, Parliament 8.  
THis Act of Parliament doth enable Frenchmen to bruik Lands and Estate in Scotland, 
ACT 65.  and Naturalizes them so as that they may enjoy all the privileges here, as any Scots-man may do, but though quoad the point of Succession, strangers have by many Nations been debarred, and that by the Roman Law, cum peregrinis Testamenti factio non erat, l. 1. C. de hared. instituend. l. 1. §. 2. ff. de ●. yet Craig. pag. 96. observes, that strangers were not debarred from Succession in Scotland, and I find it so decided, 13 January, 1575. in the case of one Richardson. These privileges granted by this Act, are likewise confirmed to the Frenches by an Act of Sederunt, the 11 of June, 1595. From these first words in this Act appointing Letters of Naturality (or Naturalisation) to be given to such of the French Subjects as shall happen to be in the Kingdom of Scotland, It may be doubted that Frenchmen cannot pretend to this right except they live here; but this is expressly contrary to the French privileges there granted to us. It may be also urged that Dutchmen or others cannot pretend to it, though they be Naturalised in France; for to Naturalise them because they are Naturalised in France, were to allow the French King to Naturalise any he pleased in Scotland, though enemies to us. 2. Only Frenchmen are Naturalised, which is to be interpreted only of such as are properly so. 3. This were fictio fictionis, which is reprobated by Law. It seems also just that except this privilege be continued to us in France, Frenchmen ought not to have it in Scotland. Quaer. If Merchants, though not naturalised will not have right to heritable Rights granted for security of their Money, for without this there could be no Commerce.  
THis Act contains the French privileges to us communicated by the French, 
ACT 66.  whereby the Scots may succeed in France in the same way that the Frenchmen themselves did, and they are by this Act Naturalised to that and all other effects, and which was very necessary for us, since by the Law of France the Fisk excludes the true Heirs of strangers, except as to Goods brought in by them, which privilege is called by the French droict d' anbeine, beside this right of Succession, the Scots likewise are free to be preferred to all Ecclesiastical Dignities. The Gentlemen are free from Taxes, and the Scottish Ships free from Imposts, albeit of late the French exact from us 50 Sols per Tun, as from other Strangers: As to which I drew this Memorial, as Assessor to the Royal Burrows.  

A Memorial concerning the Privileges due to the Scots in France.  
THe French Nation finding themselves obliged to have foreign Recruits, for maintaining their Wars, pitched upon Scotland, as a Nation very sit to furnish them Levies, and so old was their Alliance, that a League offensive and defensive was entered into betwixt Charles the Great, King of France, and Achaius King of Scotland, in Anno 787. at which time Charles the Great bestowed upon the King of Scotland the Double Tressure, garnished with Flower de Luce's, or as the French call it, Fleurie & Country fleury born by them, at this day as all the French Historians and Heralds do acknowledge.  
After this the French being engaged in constant Wars with the English, they employed the Scots on all occasions, in which their great succours and services are set down by Favin a learned French Author, in his Theatre of Honour, and to engage that Nation the more, as well as to reward their services, the guarding of the King's Person was bestowed upon them by Charles the 5 th'. and they were holden as Naturalised Frenchmen, and were exempted from payment of all Customs; and though many of these Contracts and Leagues be lost, yet these following Papers are still extant.  
A Treaty containing these privileges betwixt Alexander the 2d. and Lewis of France, called St. Lewis.  
Another betwixt King Robert le Bruce and King John.  
An Act of Parliament 1558. relative to the like Act in France, wherein Q. Marry, who was then Married to Francis, Dolphin of France, doth with the consent of Parliament Naturalise all the French in Scotland, and enable them to succeed to Estates movable and immovable here, and free them from all Taxes payable by strangers; In which Act of Parliament the Copy of the privileges granted by the French to the Scots, is verbatim engrossed.  
Item, A Patent by Francis King of France, dated May 1510. exeeming the Scots Nation from paying Custom in Normandy.  
Item, An Act of Exchequer approving thereof, dated the said year.  
Item, An Act of the Thesaurers in France, consenting to the same.  
Item, Letters Patent from the said King to his Great Council for expeding the former Patent, dated the said year.  
Item, Act of the Great Council consenting thereto.  
Item, An Act of the Cour des aides at Paris, approving the said Patent.  
Item, Charter by King Henry the 2d. of France, exeeming the Scots Nation from Customs in Normandy, and containing on the back thereof, the consent of the Cour du Parliament at Roven, as also, an approbation of the Cour des aides, dated 1554.  
Item, Charter by the said King, exeeming the Scots Nation from paying any Custom through the whole Towns in France and Normandy, containing an approbation of the Cour du Parliament at Roven, as also approbation of the Chambre des compte of Roven, also approbation of the Cour des aides in Roven, all in Anno 1554.  
Item, Extract forth of the Register of Cour des aides, for the Scots Merchants transporting wares from Normandy, to find Caution that the saids Goods shall be sold in Scotland, dated the said year.  
Item, Charter by the said King Henry, discharging the Act foresaid of finding Caution, but to give their Oath if they be required, dated 1554.  
Item, Copy of a Confirmation by King Henry the 4. of the Scots privileges granted by his Predecessors, dated 1594.  
Item, Supplication James Colvil to the Burrows of Scotland, craving recompense for obtaining the said Charter.  
Item, Copy of a warrant by King Henry the 4. to his Cours des Parlements, and other Judges, for restoring to Scots Merchants whatever has been taken from them, and granting them free Trade through his whole Kingdom, dated 1594.  
Item, Confirmation by the said King Henry the 4. exeeming the Scots Nation from paying Customs in Normandy, containing approbation of the Cour du Parliament of Roven, and Registrated in the Chambre des compte, with consent of the King's Advocate, and also Registrat in the Cour des aides, with consent of the King's Advocate there, as also Registrat in Roven, in Anno 1599  
Item, Charter by the said King, direct to the Cour des aides in Normandy, discharging the famine Act of finding Caution that the Goods transported from Normandy shall be sold in Scotland.  
Item, Extract forth of the Cours des aides of Roven, for Registration of the former Letters.  
Item, Extract of the Register of the Cour de Chambre des compte of Roven, for Registration of the said's Letters.  
Item, Extract of the Register of the Chambre des compte of Normandy, for Registration of the former Letters.  
Item, Extract forth of the Domain Books in Roven, consenting to the Registration of the said's Letters in their Books; as also, extract of the Books of Diep, consenting to the Registration thereof in their Books.  
Item, Two warrants of the Thesaurers of the Finances in Normandy for the Registrating of the foresaids Letters; all the said's Writs are dated in anno 1599  
Item, Extract of the Domain in Roven for Customing the Scots men's Goods there, in respect the Scots privileges were not confirmed by King Lewis 13. dated 1611.  
Item, Charter by Lewis 13. confirming the Scots privileges, and exemption of Customs in Normandy, and Registrat in four several Courts in France, dated in July 1613.  
Item, Extract of the approbation of the said Charter at Roven the famine year.  
Item, Extract of the said Chambre des compte the famine year.  
Item, Charter be the said King of the said's privileges direct to the Chambre des compte in Roven, dated in August, 1613.  
Item, Extract of the Cour des aides of Roven of the former Letters.  
Item, Extract of the Domain of Roven approving the said's Letters.  
Item, Warrant of the Thesaurer of Finances, approving the Registration of the said's Letters.  
Item, Warrant of the Burrow of New-haven, consenting to the Registration of the foresaids Letters, in anno 1613.  
Item, Extract in form of Arrest of the great Council of France, declaring that the Scots Merchants shall pay but for every 100 weight of Wool 25 Sols of Custom, and for every piece of Scots Hides 2 Sols 6 Deniers, and that notwithstanding of the new Taxed of Customs raised in the Duchy of Normandy upon such Merchandise, and this to evite all Process that might fall thereupon, dated 1635.  
Item, Warrant by the said King Lewis to the Chambre des aides, and M r. Desportes in Normandy, to proceed to the approbation of the said Arrest of the great Council, which is Registrat in the Books des aides of Normandy in the foresaid year.  
Item, Extract of the Cour des aides, approving the Registration of the said's Letters.  
Item, Extract of Domain of Roven, approving the said's Letters.  
Item, Extract of the Intimation made to the Customers of New-haven of the foresaids Letters, and approbation thereof in the Cour des aides.  
Item, Extract of the Burrow of Diep, consenting to the Registration of the said's Letters in the great Council, all dated in anno 1635.  
Conform to these privileges, the Parliament of Paris did in anno 1586. discern the Scottish Nation to have right to all the Privileges, and to be capable of Employments, and free from all Customs, whereupon the learned Mr. Servin that famous Advocate has written a learned Book, maintaining the said's Privileges, to which he has annexed the said Decree and Sentence. Likeas the saids Privileges are acknowledged by le Bret, in his Book concerning the Prerogatives of the Kings of France, cap. Naturalisation, and many other French Lawyers, and by Favin in his abovecited Theatre.  
By virtue of which Rights and Privileges, the Scots have been always esteemed as Naturalised in France, and have enjoyed all the Privileges due to the Natives, until of late, that there being 50 Sols per Tun imposed upon foreign Bottoms, some of the Scots in Roven were charged for payment thereof, whereupon Mcmath, Blackburn and Pringle, having been pursued in the Cour des aides, they were not only in July 1649. absolved from paying any part of the said Taxation, but the Collectors were ordained to restore unto them what they had exacted upon that head: As also, there being a Scots Vessel consigned to Mr. Pringle, in anno 1663. and he being charged for the said 50 Sols per Tun, he was freed from the said Taxation by the Parliament of Roven after full debate, upon 16 June, 1663.  
On our part likewise the French enjoy all the Privileges of Natives, and possess Lands and Heretages, and are as capable of Succession as the Natives are, nor pay they any Taxes, being declared free conform to the said Treaties by several Acts of Exchequer in Scotland, though the English have imposed a Crown per Tun to compense that 50 Sols.  
From all which it appears most just and reasonable that the Scots should have all the Privileges of the Natives of France, because,  
1. The same have been granted to them by solemn Charters and Concessions, which though it had been free to the French King to have at first granted, yet being granted, he was not thereafter by the principles of Justice free to have recalled the same.  
2. Though mere gratuitous privileges might be recalled, as they cannot, yet renumeratory privileges granted for Services done, as these Charters can never be recalled without an open violation of Justice; and it is undeniable that Scotland has spent more blood and money in the French service than all those privileges were ever worth, and it's known that the last Concessions were granted to the Scots, for giving Q. Marry in Marriage to the Dauphine of France, whereby if he had had Children, Scotland itself had been annexed to France; and because the Scots did refuse her to K. Edward the 6 of England, they were thereupon invaded by the English, and their Nation was almost ruined.  
3. Though renumeratory Concessions might be quarrelled, as they cannot, yet mutual Treaties and Contracts can never be abrogated nor taken away without the consent of both the Parties Contracters.  
4. The Scots being secured by Decisions of the Supreme Courts of France, as said is, they have thereby the greatest security that the Law of any Nation can give.  
As these reasons may convince any man that it were against the Justice of France to take away the privileges of the Scottish Nation, so the principles of prudence and policy seem very much to oppose the taking them away, for,  
1. What can any other Strangers expect from Concessions, Treaties, or Contracts, when so old and well deserved privileges are questioned, it being very well known to all Nations that Scotland has deserved extraordinarly of France, and this Alliance has been famous beyond all the other Alliances now known in the World.  
2. The Scots and Scottish Nation have upon this account refused all other Alliances, to their great loss and prejudice, in so much that they have oft times suffered their Kingdom to be invaded, harassed and ruined by the English, because we preferred the French Alliance to theirs, and as our Countrymen have always been ready to spend their lives for the French, so within these 50 years we have lost 100000 men in their service, who did not amongst them all bring home 20000 Livers to this Kingdom; and it's very well known how ready we are to own the French interest in all Courts and Countries where we live abroad.  
The Kingdoms of Scotland and England may come to divide by the failure of the Scottish Line in England, and so it still seems prudent for the French King not to extinguish his interest in Scotland.  
And whereas it may be pretended that we have forfeited our privileges by declaring War against the French, to this it is answered, that 1. The denouncing of War by us was only the effect of a necessary obligation upon us as being a part of Great Britain, and not a War entered into by Scotland upon any National account. 2. By Treaties following upon the War, all things are restored to the former condition they were in, except in so far as former Treaties were innovated by express conditions; but so it is there is nothing inserted in any of those Treaties to the prejudice of our former Leagues and Privileges, and therefore they must revive and return to the same force and vigour they were in before the War.  
I find this Act Registrated and Recorded in the Books of Sederunt, and generally it is observable, that most of the public Papers, whereupon any legal Debates or Securities might depend, were inserted in the Books of Sederunt, which was somewhat like the French Custom of verifying in the Parliament of Paris (that is the same with our Session) the King's Edicts, and thus the pacification betwixt the Regent and the hamilton's in anno 1572. and many such Papers are inserted there; and of old even public accidents were likewise insert, such as Eclipses, etc.    

Queen MARY, Parl. 9  
Ordinarily in Acts of Indemnity, which follow Civil War, as this is, 
ACT 67.  the King or State does only discharge all action that may be competent, for all manner of Omissions or Commissions, by virtue of any Power or Warrant of those in power for the time, as is to be seen in the 10 Act 2 Sess. 1 Par. Ch. 2. But here in this Act, all actions that may be competent for any Cause or occasion, during the time, for which the Troubles lasted, are once discharged, except there be a Warrant given by the persons named in the Act, for intenting actions during that time, but thereafter by the Act 44 11 Par. Ja. 6. the Lords of Session are made Judges to the Interpretation of that Act of Oblivion, and all Decreets recovered during these times, are declared irreduceable, if they be not pursued within Year and Day, and this short Prescription is declared to run against Minors, which is likewise conform to the said 10 Act, in which late Acts the nature o● Amnesties and Oblivion, shall be more fully declared.  
VId. obs. ad Act 11 Par. 1 Ja. 1. 
ACT 68   
VId. obs. ad Act 49 Par. 13 Ja. 1. 
ACT 69.   
UPon this Act the Forgers or Bringers home of false Money use to be forefaulted, 
ACT 70.  as was found in the case of John Drummond, November 27. 1621. and many other Cases, and though it was alleged in defence of Hamilton and Burn, October 1677. that only Officers of the Mint-house used to be forefaulted because of their exuberant Trust, and that it was easy for them to commit such Crimes, yet Drummond was no Officer, but a Saddler in Pearth, the words of this Act, that are ordinarily founded upon, are, that the Revealers of Forgers or home bringers of false Coin, shall have the one half of the Escheat of all their Lands and Goods, movable and immovable; and this punishment is peculiar to Treason; and it seems that Forging or Coining is an encroachment upon the King's Prerogatives; one of which is the Coining of Money, but I see not why bringing home of false Coin, could upon this account be declared Treason. It is also observable from the former case, 1677. that the meanness of the quantity or value Coined, excuses not from the punishment of this Act, Vid. Crim. observ: Tit. Falshood.  

ACT 72.  BY this Act it is appointed, that no Parson, Vicar, or other Kirk-mans' Manse or Gleib can be set in Feu, or long Tack; and therefore an Heretor, to whom the Vicar's Gleib was Feued, though a year before this Act was refused relief, when that Land was designed to the Minister, because the Feu set to him was contrary to this Act; and though the Feu was set prior to this Act, yet it was null, because it was not confirmed before this Act, February 12. 1635. Vid. obs. on 48 Act Par. 3 Ja. 6.  

ACT 73.  ALL such as practise Witchcraft, or consult with them, are by this Act punishable by Death, as are also all such as pretend to have any such Craft or Knowledge, therethrough abusing the people, from which it is observable, that such as pretend to foretell things to come, or to tell where things are lost, may by this Act be punished with Death, though really they have no such skill.  
By this Act also, all Sheriffs, Lords of Regalities, and other Judges, having power to execute the same, are ordained to put the same in execution; but it does not therefore follow that Stewarts and bailiffs, and Sheriffs, are competent thereto, and de facto, the Justices only, or such as have Commissions from the Council, use to judge this Crime, Vide. crim. observ. Tit. Witchcraft.  
NOtour Adultery is by this Act declared punishable by Death, and by the 105 Act 7 Par. Ja. 6. 
ACT 74.  That is only declared to be notour Adultery; Where 1ᵒ. There are Bairns, one or more procreated betwixt the Adulterers. 2ᵒ. When they keep company, or bed together notoriously known. 3o. When they are suspected of Adultery, and thereby gives Slander to the Kirk, whereupon being admonished to satisfy the Kirk, they contemptuously refuse, and for their refusal they are Excommunicate, if either of which three degrees be proved before the Justices, the Committers are punishable by death; From which Act it is to be observed; 1ᵒ. That by the first Act, premonition to abstain, was still to be made in all cases; yet in neither of the two first cases here related, it is declared necessary; but since it is not lawful to kill him who was premonished, and thereafter conversed, except they conversed in suspect places, Gribald. de Homicide. num. 11. It seems that in neither of these Statutes, Conversation should be Criminal even after prohibition, except it be in suspect places. 2ᵒ. The Justices are only declared to be Judges to the notoriety of Adultery; and therefore it may be controverted, if Lords of Regality be Judges competent to the Cognition of it, and this seems to be restricted to the Justices, because it is an arbitrary Inquiry in a capital case. 3. This Act does not exclude capital punishments in other cases of Adultery, but only ordains that these three degrees shall be punished by Death; and since there are other cases more grievous to the party injured, and more scandalous to the Commonwealth; It may be argued that the punishment of Death should likewise be extended to them; as for instance, to commit frequent Adulteries.  
THis Act declaring that the raising of Bonds of Men of War, 
ACT 75.  and the rising in that manner is punishable by Death, is formerly explained, Act 2 Par. 1. Ja. 1 Vid. crim. observ. pag. 44, & 45. and this Act is ratified by the 12 Act 10 Par. Ja. 6.  
BY this Act the building of Kirk-Yard-Dikes, 
ACT 76.  is referred to the Lords of Secret Council, who are to take such course therein as they shall think fit; but by the 232 Act 15 Par. Ja. 6. The Parochioners are ordained to build them to the height of two Ells. And the Lords of Session are ordained to grant Letters of Horning for that effect, which they use now to do.  
THis is fully Explained at the 7 Act 9 Par. Ja. 6. and the first part of it was enacted formerly by Act of Secret Council, 
ACT 77.  December 21 1561. and that begins, It is Statute and ordained by the Queen, which seems strange, seeing to Statute is only proper to Parliaments, but Acts of Council do ofttimes bear, Statute and ordain Vid. Costal. de Imperator. Quest. 73. num. 25. This Act mentions three kinds of Bishops, the Bishop Elect, the Bishop Postulat, and the Bishop Consecrat; a Bishop Elect, is he who is Elected by the Chapter, upon a congé d'és●ire from the King, but is not yet Consecrat; A Bishop Postulat, is he who was only called, but not Elected, and cannot be Elected as a Minor, a Bastard, etc. Vid. cap. innotuit. §. habile de elect. and it is observable from this Act, that both these used to Dispone Kirk-lands, or set the same in Tacks, else they needed not to have been Discharged by this Act; But though we have now Bishops Elect, yet we have no Bishops Postulat; and these Elects exercent solum ea quae sunt jurisdictionis sed non ea quae sunt ordinis.  
BY this Act Notars are to be admitted only by the Lords of Council, that is to say, the Lords of Session, 
ACT 78.  as de facto they now are; and by the Act of Sederunt, 1595. The Lords ordained that yearly in November one of their Number should be Named by them to receive Notars, who shall only receive such as are past twenty five, can write an Evident in Latin or English, and be Apprentice five years to a Notar, though now they are admitted before twenty five, and without having been Apprentice at all.  
By this Act, such as exerce the Office without being admitted by the Lords, or after they are Discharged by them, may be punished arbitrarly, and even to Death; But it has been found, that Evidents subscribed by Notars, once admitted, though thereafter discharged, are valid, they having still been habit and repute to be Notars.  

ACT 79.  THough this Act appoints that all Notars shall be admitted by the King, yet now they need no Letters from the King, but do depend upon the Clerk of Register, and his Depute, the Clerk to the Notars. The Clerks of Session are by their admission as such, Notars, though they be not admitted in manner mentioned in this Act, and Instruments under their hands in judicial Acts, makes as much Faith as the Instrument of any Notar.  

ACT 80.  THe Act here dispensed with, is the 46 Act Par. 6 Q. Marry, and it is observable by this Act, that when former Laws have not been universally observed, no advantage is taken upon them, and this is one of these Cases, in quibus communis error sacit jus.  

ACT 81.  THe observation in the former Act holds also in this, and the Act here dispensed 〈◊〉, is the 38 Act Par. 6 Queen Mary.  

ACT 82.  BY this Act it is declared that five or six of the principal Burrows shall be called to the concluding Peace and War, and to the laying on Taxations. It may be doubted, whether by the Council to which they are to be called, be meant here the Parliament or Privy Council, and though ordinarily the Parliament be called the King's Council, and that it may seem they only should impose Taxations, yet it m●y be urged, that by Council, is here meant the Privy Council, because all the Burrows must be cited to Parliaments▪ and the King and his Council used before to lay on such general Taxations; and de facto, His Majesty did so in many cases, without either Parliament or General Convention of Estates, as in laying on the Taxation, for defraying the expense of the Baptism of King James the 6. December 6. 1562. which Taxation was laid on by eight Earls, five Bishops, and four Burrows, not mentioning Barons, because it seems the Earls were accounted Barons; the Taxation was 12000. pounds, whereof 6000. pounds by the Spiritual Estate, four thousand pounds by the Barons and Freeholders', and two thousand pounds by the Burrows: and another Taxation for defraying King James the sixth's expense, in his Journey to Denmark, and many other such Taxations; and this was then necessary, because Taxations behoved to be imposed, His Majesty's Revenue being then very mean, and to have called a Parliament or Convention, would have put the people to more expense than these necessary Taxations were worth; but now by the foresaid 5 Act 1 Par. Ch. 2. all sums to be raised for maintenance of Forts, or Armies must be first concluded in Parliament or Convention of Estates.  
And now the King has a considerable Revenue by the Excise, for defraying those small necessities, for which the Council then imposed; and it is certain in the general, that all Countries should supply the Monarch with Means to defray the expense of the Government, Vid. Arnis. de jur. Majestatis in bona privatorum. Vid Act 85 Par. 6 Ja. 4.  
BY this Act the making privy Conventions or Assemblies within burgh's, to put on Armour, or display Banners, 
ACT 83.  etc. without Licence from the Sovereign, are punishable by Death.  
Observ. 1ᵒ. It seems that mere Convocations or Assemblies, are not per se, punishable by Death, without putting on Armour, or displaying Banners.  
Observ. 2ᵒ. That Naked-assistance at such Tumults with a Batton, was not found by the Justices to infer Death, in anno 1665. and I conceive that though a previous design were proved; yet the assistance with a Batton would not be sufficient, since the Act requires putting on Armour, or Clothing themselves with Weapons, which imports hostile Weapons, for neither of these can be verified in a Batton, and penal Statutes are not to be extended; but yet the appearing with a Batton is sufficient to punish arbitrarly, such as assist at Tumults,  
THis Act Confiscating Ship and Coals, 
ACT 84.  wherein Coals are Transported, is in Desuetude, but is not expressly abrogated by any Law; and though at first, Licences for Transporting Coals were necessary; yet now even these Licences are in Desuetude, we having now discovered more Coals than serves our Nation.  
THis Act Confiscating Beeff and Mutton, that comes to Mercat without Skin and Birn, is still in observance, 
ACT 85.  and was made for discovery of Theft, for the Skin being upon the Beast that is killed, does bear all marks whereby it may be known; and for the same reason in the Southern Shires, the meaner sort who kill any Beasts, are obliged to keep their Ears, and if the Flesh be found where the Ears cannot be produced, it is commonly looked upon in these Countries as a point of Dittay; not only must the beasts be brought to the Mercat with their Skins, according to this Act, but by Acts of Burrows, the Skins that are brought to the Mercat, must not be scored nor holled, which Fleshers did before negligently; nor must the Haslock be pulled that being the best part of the Wool; and by the Acts of the Convention of Burrows, made at the desire of the Conservator, the Skins of Beasts within this Kingdom did rise in value a third more than, when they were carried beyond Sea.   

Qeen MARY, Parliament 10.  

ACT 87.  BY the second Act 1 Par. Ja. 2. which is the Act here related to; the King's lawful age was declared to be twenty one Years; but it seems, that because it was left dubious by that Act, whether the Year twenty one was to be inceptus, or completus when begun or ended; therefore by this Act it is declared to be twenty one Years complete, and the word complete, is twice repeated. And it seems that before this Act, even the year itself was debateable; for in the 93 Act 7 Par. Ja. 5. It is said that the King after his perfect age of twenty five years, Ratifies, etc. By an Edict of Charl. the fifth of France, anno 1375. Their Kings are declared Majors, & horse de tutelle, at their age of fourteen.  

ACT 88  IN this Act all Confirmations of Kirk-lands, not Confirmed by King or Pope, before the Year 1558. (at which time the Reformation begun) were declared null; and by this Act Confirmations from Rome, after that Year are discharged, and the Queen's Confirmations are declared equivalent to the Popes; and I find that by Act of Secret Council, September 10. 1561. the sending to Rome for such Confirmations is by Proclamation discharged under the pain of Barratry.    


K. JAMES VI Parliament I.  
QUeen Mary being Queen during her Life, 
ACT 1.  appoints the Earl of Murray to be Regent, and his Election is Confirmed by this Act, and it is Declared to last till the King's age of seventeen, at which time it is Declared, that he shall enter to the exercise of the Government; I find amongst the Un-printed Acts, subjoined to this Parliament, a Resignation of the Crown made by her, which it seems was necessary, she being Sovereign during her Life, as the King is during his Life.  
Observ. She calls the Earl of Murray Brother, though he was her natural brother, which was concealed ob honorem, but Ineptly and though the Earl of Murray is here called the King's Cousin, yet he should have been called his Uncle: Nor are Uncles properly Cousines; But I think this was because all Earls who are Counsellors are called Cousines and Counsellors; but yet if he had been to have been called a Counsellor, for this cause he should have been called Cousin and Counsellor. I have also seen a Commission to one of the King's Natural Sons in England, wherein he was called our Cousin.  
It is observable, that sometimes the Acts of this Parliament bear, to be by Our Sovereign Lord, my Lord Regent and the three Estates, as the 20, 21, and 29. which is not well expressed, for the Estates and Regent had no power to make Acts, and therefore the rest bear better, Our Sovereign Lord, with the advice and consent of his clearest Regent and three Estates.  
Nota, The Parliaments saying my Lord Regent, seems very ill Grammar, for it should have been the Lord Regent.  
THose Acts Confirm, and relate to former Acts passed in the Parliament, 
ACTS 3, 4, 5, 6  holden by Queen Mary, August 24. 1560. and yet we find no such Parliament; but the true answer to this is, as appears by spotswood's History, that the Lords of the Congregation having met in anno 1560. and having past those Acts, abolishing the Popish Religion, many of the Members of that pretended Parliament protested, that this meeting was no Parliament, because there was none there to re-present the Queen, nor the King of France her Husband, whereupon Sir James sandiland's was sent over to procure a Ratification of these Acts, which being denied, the same Acts are here Ratified by the Earl of Murray, when he came to be Regent, as if they had been passed in a lawful Parliament.  

ACT 7.  FOr understanding of this Act, and the nature of Patronages, it is fit to know that the Right of Patronage is a power of Nomination granted to him who either was Master of the ground whereupon a Kirk was built, or who doted any thing to the Maintenance of it, or who did build a Church, to present one to serve the Cure thereat, in all which cases he is accounted Patron, and may present a person to be Minister, or to any other Benefice, and that only if he reserve such a power to himself in his Mortification, for Hope in his Lesser Practics, is of opinion that reservation is necessary, and the reason is, because jus patronatus est servitus libertati Ecclesiae imposita, and therefore is not to be allowed, except the same was adjected at first to the Mortification, Molin. ad Reg. de infirm. The first mention of Patronages is by St. Panlin. about the Year 431. and Justinian I find mentions the Novel. 67.  
Patronages in Scotland are either Laic or Ecclesiastic; all Patronages are accounted Ecclesiastic, which either belong to Ecclesiastic persons, or which have flowed from the King (though by Infeftment) since the Reformation, in so far as concerns these Benefices, wherein the King succeeds in place of the Pope, who before the Reformation, was accounted universal Patron; Laic, Patronages are such as have been Disponed before the Reformation by His Majesty, and these pass by Infeftment, or have been founded by Laic persons since, and these must be now obtained by a Signature from His Majesty, even by such as either contribute, dotem, sundum, edisicationem. The words of the Concession are, His Majesty grants advocationem, donationem & jus patronatus Ecclesiae de, etc.  
It is expedient to know the differences betwixt the old Laic Patronages, and these which are Disponed by the King since the Reformation, because by the Act of Annexation, July 1587. all Kirk-lands, are annexed to the Crown, and an exception is always made of Lands which pertains to the Benefices of Laic Patronages, which exception is only extended to Laic Patronages, which were lawfully established before the Reformation; which is also conform to the Canon Law, by which the Pope may prejudge an Ecclesiastic Patronage, but cannot a Laic, Beug. de union. beneff. §. 3. num. 9  
After one is preferred by the Patron, he hath only jus ad rem, but his Collation and institution which is given him by the Churchman, to whom the Presentation is directed, gives him jus in re; but if the Benefice to which the Patron presents be a Benefice without Cure, that is to say, having no care of Souls, as Provestries, Prebendries, etc. eo casu, there needs no Collation or Institution, December 11. 1632. L. Lugtoun con. Edmiston.  
The Patron must present one within six months after he comes to know the vacancy, else the Presentation pro eâ vice, belongs to the Church jure devoluto; in which we agree with the Customs of Normandy, as in many other things, But Molineus does more rationally conclude, ad Reg. de infir. resig. num. 63. That the Bishop does confer jure proprio, after elapsing of these six Months, because all Churches of his Diocese sunt in illius ordinatione; so that substracto per lapsum hunc jure patronatus quod huic juri derogabat, redit ad suam naturam quod probatur ex c. 22. etc. 2. Extr. de suplend. negl. praelat. and yet when the Archbishop presents upon the Bishop's failyure, he does it only jure devoluto nam inter utrumque est gradus jurisdictionis quae ab inferiori puta Episcopo post elapsum tempus legitimum devolvitur ad superiorem puta Archi-episcopum sed patronus nullum facit jurisdictionis gradum; but if the presbytery refuse to admit a qualified Minister presented by the Patron, than the Patron may retain the whole Fruits of the Benefice in his own hands, Act 115 Par. 12 Ja. 6. This retention is likewise allowed by the 1 Act Par. 21 Ja. 6. But whereas by the former Act, the Presentation jure devoluto fell to the Presbytries by the last Act it falls to the Bishop; but though by these Acts it be lawful to the Patron to retain the vacand Stipends, or Fruits of the Benefice in his own hand, yet it may be doubted, if he may apply them to his own use, for these are not only different effects, but it seems that this being contrary to the nature of things Sacred, and to the principles of the Canon Law, he cannot, for though by cap. in quibusdam 12 de paen. cap. 13 the elect. Patrons had the Custody of their own Churches when they vacked; yet the Fruits of all vacant Churches were to be reserved for the future intranti, futu● ro Clerico cap. 2. Extr. ne sede vacant. and though at first Kings, and then all Patrons pretended to the intrometting with the Fruits of their Churches, especially in Britain, as Malch. Westmonst. observes in the Year 1240. yet Alexander 1. by the cap. 14. Extr. de off. Jud. ord. appointed, that even Procurators should be appointed for intrometting with these Fruits during the vacancy quod patroni laici curam tantummodo & defensionem suarum Ecclesiarum haberent non etiam potestatem ullam in rebus quas iis donarunt vid. can. Noverunt 10. Quest 2. Notwithstanding of which Canons Hostiensis, and others, except such cases, wherein by the foundation, or by a singular privilege, or by prescription the contrary is introduced, and Molineus asserts, that all Laic Patrons may appoint Administrators, and gather up the Rents, though they cannot fructus Ecclesiarum vacantium in usus ●uos converteresed futuro Clerico reservare vel utili●er in Ecclesias impendere; and therefore it seems, that the Parliament having only allowed Laic Patrons to retain these Stipends during the vacancy, they can only apply them to a pious use, but can in no case appropriate them to themselves; for as such an appropriation would be sacrilegious, so it would be sufficient for preserving the Patrons Right, that he might bestow them upon such pious uses as he pleased; but since the Act 52 Par. 1 Ch. 2. and the Act 23 of the third Session of that Parliament, appoint all vacand Stipends to be employed for Universities, and other pious uses, and that there are several exceptions there made, and yet none in favours of Laic Patrons, I see not why the Rents of Laic Patronages fall not likewise under the Collection of vacand Stipends, the Laic Patrons having been re-presented in that Parliament, and so consenting to this Act, especially seeing the said Act 52 declares that the Benefices of vacand Kirks, should during the vacancy be employed upon pious uses, and the Collectors of vacand Stipends, have alwise been in use to Collect these.  
Selden in his Treatise of Tithes, asserts that the Right of Investiture, was at first reserved by Lay Patrons in the Foundations, and that the Gleib and Tithes were at every Vacation conferred by the Patrons to the new Incumbents, by some Symbol or Ceremony, not differing from our Seasines; and it is probable that for some ages after Charles Martels Reign it was so, because Tithes were then Transmitted by Laical Infeudations; and I have seen several Rights of this nature in the Chartularies of our Abbacies; and though afterwards this was condemned by many Councils, yet Kings reserved to themselves the vacant Fruits of Bishoprics, as being Founders and Patrons of these Benefices; and with us this Clause, reserving to the Patron's power to retain these Stipends during the vacancy, seems a vestige of their old pretention; but I shall examine all this very fully in my Treatise of Tithes.  
If the Bishop refuse to admit one presented by the Patron, than recourse must be to the Archbishop, and if he likewise give not redress, than the Council will give Letters of Horning to Charge the Ordinary to receive the person presented; and by that Act the Bishop may refuse to admit a person, who hath not reserved to himself a sufficient Maintenance in setting Back-tacks of his personage to the Patron, which paction is accounted Simoniacal, and the Lords of Session declared only Judges competent thereto, though by the Ch. 2 lib. 1. R. M. patronages are declared to belong to the Ecclesiastic Jurisdiction, and the said paction is probable by the party's Oath, albeit regulariter nemo tenetur jurare in suam tur●itudinem by the 1 Act Par. 21 Ja. 6. It is appointed that the Bishop shall not refuse to admit any qualified Minister, who hath been once admitted and received a Minister; by which it is clear that the Bishop is not obliged to receive an Expectant, who is ●ot an actual Minister, and the reason is, because non constat, if he be yet qualified, and the Bishop cannot be obliged to Enter him, and consequently is not obliged to accept his Presentation.  
By the Canon Law four Months were allowed only to a Laic Patron, and fix to an Ecclesiastic; this was our Law before this Act, as is clear by the 2 cap. R. Mai. lib. 1. and there was good reason it should have been so, for the constitution concerning it, c. 2. Ext. de suplend. negl. prael. is written Episcop● St. Andreae in Scotiâ; and this is cited as our Law, by Le Roy de jure patron. c. 28. and in case of the Patron's negligence, a gradation was allowed from Inferiors to Superiors, till it ended in the Pope.  
By that Law likewise, a Laic Patron might vary in his presentation; but an Ecclesiastic person could not; and if an Ecclesiastic Patron presented a person that was unworthy, he lost the right of his Presentation pro ea vice; but a Laic patron did not: and by our Law, if the Patron present one that is unfit, he may present another, and a third, providing all his presentations end within six Months, for the presenting one within six Months interrupts not so, as that he may thereafter present another within other six Months, as some think, except his not admitting be occasioned by the Bishop, who cannot seek a jus devolutum, by his own fault, by the 7 Act Par. 1 Ja. 6. the gradations then allowed, were from the Ordinary to the Superintendent, and Provincial-assembly, and from them to the General-assembly. Where there are more Patrons, they have right to present per vices, and he who hath been in possession of presenting trina vice, that is to say, the three last times successiuly, without interruption, hath the only right of presentation in possessorio, in a Competition with the other Patrons pro ea vice, without prejudice to the rest to declare their Right for the future, as accords; and by some it is alleged, that Presentations trina vice ex decessu incumbentis, excludes all other Rights etiam in petitorio, but this is not our Law.  
Doctor Forbes in his Treaty of Simony, exclaims extremely against this Act of Parliament, for allowing the Incumbent to set Tacks, reserving to himself a sufficient Maintenance, and he urges violently, that this Act allows rather Simony, than accuses it.  
IT may be argued that this Act debars not such of the Royal Line as have right to succeed to the Crown, 
ACT 8.  for this relates only to a Coronation, and the Coronation itself is not necessary, Coronatio enim magis est ad ostentationem quam ad necessitatem, nec ideo Rex est quia Coronatur, sed Coronatur quia Rex est Oldrad. Consil. 90. num. 7. Balbus. lib. de Coronat. pag. 40. Nor do we read that any Kings were Crowned, except Joash, in Scripture, and Clovis King of France was the first that was Crowned; nor are any Kings of Spain Crowned to this day, neither is a Coronation Oath requisite, Sisenandus being the first who in the 4 Tolletan Council gave such an Oath amongst the Christians, as Trajan was the first among the Heathen Emperors, Gregory was the first of our Kings, who anno 879. gave the first Coronation Oath, having embraced the Christian Faith, in which he was very zealous, swore to preserve it; but this Oath was not made to the people, for they were not present, but to GOD; nor could he, as Blackwood observes, Apol. pro Regib. c. 26. bind his Successors, quia par in parem non habet Imperium, nor could he bind himself for them to the people, quia Cliens jurat Domino non Dominus Clienti, tit. de formâ fidelitatis, lib. 2. Feud. Likeas it may be said that this Act being made in the King's Minority, and being prejudicial to the right of Blood in his Successors, it falls under his Revocation, made Par. 11. cap. 31. whereby he expressly revocks every thing which might hurt the privilege of the Crown, which this Act 8 would do, if Kings were thereby debarred from Succession, for differing in Religion from their Subjects: This is contrary to the Confession of Faith, which ties us to obedience to our King, though an Heretic; and since private Subjects are not debarred upon this account from their property, the King ought not to be debarred from the exercise of his Government, which is his Property, and that Kings cannot be debarred by a Statute, is clear by all the Doctors, in Can. qui jura distinct. 8 Aecurs. in l. Princeps ff. de Legibus, l. 4. the natal. restit. l▪ Jura Sanguinis, ff. de Reg. Jur. sed naturalia instit. de Jure Naturali forma Juramenti quod praestant Reges in Coronatione per Gloss. 1. in cap. fin. de Eccles. aedif. est quod jurat. se Regni sui jura illibata conservaturum, vid. Antony's Corset. de potest. Reg. pars 3. num. 62. Some are also of opinion, but injustly, that Coronation is to a King the same thing that Investiture is to a Subject, and therefore as Heirs may continue the possession of their Predecessors before the Infeftment, but cannot sell, excamb, or do any other deads' of property till he be Infeft, so though a King before he be Crowned may do these things that are necessary for present administration, yet he cannot hold Parliaments, dispone upon annexed Property, and do any other deeds which require the exercise of the Royal Power, till he be actually Crowned: And whereas this Act ordains that all future Kings shall take this Oath at their Coronation and the receipt of their Princely Power, which implies that they should take this Oath before they can administrat: It seems that this implies a contradiction, for they must administrat in appointing the Coronation, and ordering all things thereto relating; and our King did govern long ere he was Crowned; but these words are exegetick only of the Coronation, and by them is meant the receipt of his Authority in the Coronation. This Act is Ratified by the 99 Act, 7 Par. Ja. 6. vid. Act 2. Par. 3. Ch. 2.  
IT is fit to know, 
ACT 10.  that whatsoever of the thirds was not assigned to Ministers, did appertain to the King; and it was called Superplus, whereof there was yearly a Book made, which altered, and was more or less, according to the Assignation to the Ministers, and according to the Superplus-Books, the King's Collector did charge for the Superplus for the King's use, and with it also the omitted Benefices, which the Prelates and Beneficed persons omitted in the up-giving of their Rentals, and also for common Kirk, and Friars Lands, which also with the thirds were appointed for the uses aforesaid.  
The Rent of the thirds for the King's use, is altogether extinguished, partly by restitution of Bishops, who have right to their own thirds, and partly by erection of Abbacies and Priories, in which the thirds are discharged in favours of the Lords of Erection, they planting the Kirks. Likewise in Parliament, 1617. and 1621. And in our late Parliaments there was Commission granted by the Parliament for planting of Kirks, which has made the old Book of the Assignations of Ministers Stipends, and yearly Plate thereof, to be out of use. Many of these Books of Assumption are still preserved, and they are very useful for clearing what the old Rentals of Benefices were, so that it may be known whether Benefices be set with di●●●nution of the Rental.  
FOr the better understanding this Act, it is fit to know▪ 
ACT 12.  that a Provost with us, is that which praepositus is in the Canon Law, praepositura est dignitas, quando est Collegiata alias non Fed. de sen. Consil. 80. Alia ergo est Jur. Can. praepositura Collegiata, alia non Collegiata; But with us, where there was a College Kirk, it was governed by a Provost, and prebend's; and generally it was institute for Divine Service; but there are Colleges institute for instructing of Youth, as the old College of St. Andrews, which is governed by a Provost.  
A Provost is in our Law no Prelate, and therefore Tacks set by him are null, without consent of the Patron, 12 July 1616. Hope tit. Kirk; but è contra, the Patron may gift Prebendaries without consent of the Provost, or prebend's, except it be otherways provided by the Foundation.  
The Collegiate Kirks, Provostries, Prebendaries, having been founded by Noblemen, for their own ease and advantage, they retain still a greater power over them than over any other Benefices, and therefore by this Act the Patrons of these may provide them to Bursers or others, notwithstanding of the Foundation, which is ratified by the 158 Act. Par. 12 Ja. 6. and by the 54 Act, Sess. 1 Par. 1 Ch. 2 vid. observe. on that Act.  
FOrnication is now punished only by the Kirk Session, and this Act is not exactly observed, 
ACT 13.  for the offenders now only pay an Arbitrary Fine, and stand upon the Stool of Repentance.  

ACT 14.  THis Act and the next are explained in my Criminal Treatise, Tit. Incest.  

ACT 17.  THe melting down of any Money already Coined within the Kingdom, under the pains here expressed, is punished with us, because our Coin, being as fine as our Plate, it would be thus melted down, and so the Stock of the Money would be impoverished; and as the 66 Act, Par. 8. Ja. 3. observes, it would waste and minish by translation in the fire; but the Question being agitated, whether foreign Coin may be melted for Bullion; it was urged, that by this Act no Gold nor Money already Coined within this Realm was to be melted; for by the said 66 Act, no Gold nor Money that bears Form, and is Printed, should be melted: but to reconcile these, the answer is, that if Money be once allowed to be current here by direct allowance, as by Proclamation, it is not thereafter to be melted down; and so it was decided in the Lord Hattons case, Feb. 1683.  

ACT 18.  THough the Lords of Session are not Judges competent to reduce Sentences past in Parliament, as the more Sovereign Judicature, yet they are Judges competent to reduce Rights confirmed in Parliaments, whereby the Confirmation falls in consequence, quia confirmatio nihil novi juris tribuit, vid. 25 March. 1631. Bishop of Dunkell contra the Lord Balmerinoch.  
This Act against forbidden Weapons is explained by me in my Criminal Treatise. Tit. 32.  

ACT 19  VId. the Criminal Treatise. tit. Falshood.  

ACT 20.  THis Act was to supply the nullities which could have been objected against such Rights by the Court of Rome, who pretended to the only right of bestowing Church-benefices, so that our separation from the Church of Rome was first authorized by the Parliament in the year, 1560.  

ACT 21.  VId. Crim. tit. Theft: But it is now fit to observe, that when anyman cries for help against Thiefs, all who are desired are obliged to concur with the Owners of the Goods, under the pain to be holden partakers of the Theft, which Hue and Cry with us was called Quiritatio by the Romans, by the Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, vid l. 1. & 2. Cod. de his qui lat. & l. 1. ff. de seru. fugitiv.  

ACT 23.  ALthough by our Law Pactions for Gifts, or Rights to accresce to private men, though not actually as yet fallen to them, are valid; and thus it has been found, that a man may renounce or s●ll haereditatem futuram; yet by this Act a gift of Escheat, when a Party shall be denounced, is declared not to be valid, because this may occasion the person whose Escheat is so gifted, to be denounced viis & modis, and this proceeds upon the same reason that the Civil Law discharges such deeds, quae praebent votum captandae mortis alienae, and by the Canon Law a Benefice cannot be promised or bestowed when the same shall happen to vaik, nec confirmatur sequenti vacatione col●atio, C. proposuit, de con. preb. Ca 2. the preb. in 6. & argumento hujus legis, it seems that the survivances of Offices should be null by the same parity of reason, for these preclude the King from his free Gift, and are the occasion of snares: Likeas, such Gifts by our Law and Style should express modum vacandi, which cannot be done where there is no vacation; and though we have no express Statute, yet●by our Practice, which observes Styles as Statutes, if a Gift express not modum vacandi, it will be null; so a Gift of Escheat not mentioning the Horning whereupon it proceeded, was not sustained, though a Horning year and day before the date of the Gift was Libelled on in the Declarator, and though the Gift was past the King's own Hand at Court, where Hornings could not be got, 20 November 1628. Welston contra Stuart. For if this had been sustained no Horning had ever been expressed thereafter, but the Donatar had still choosed out one of the meanest Debts, since he is bound to pay the Debt in the Horning by his Gift.  
THough this Act requires that Seasins within Burgh should be subscrived by the Clerk, 
ACT 27.  and given by the Bailie of the Burgh, yet the Lords sustained a Seasine of Lands within Burgh given by the Sheriff and Sheriff-Clerk, where there were no Magistrates or Town. Clerk in Office at the time that the Seasine was given, 21 July, 1666. Thomson contra Mackitrick. This is one of the instances that, necessitas non habet legem, vid. 11 Act, 3 Par. Ch. 2.  
THis Act was but temporary, and so is useless now. 
ACT 28.   
THis Act is Ratified by the 15 Act, 2 Par. Ch. 2. and the reason why Maltmen are discharged to have a Deacon, is, 
ACT 29.  because at their meetings they might easily conspire to set a price upon the Victual, and upon the Ale and Beer at their pleasure, and force the Gentlemen to sell at any rates.  
IT may seem strange that this Act made by Q. Mary should be insert here, but that Parliament holden upon the 19 day of April, 
ACT 31.  1567. is not at all Printed, and therefore it has been thought fit to insert this Act in favours of the reformed Religion amongst her Sons Acts, and to let it continue in her name, because it might clear that her Majesty had consented thereto in her own Reign.  
This Act bears an acknowledgement of the Queens deriving her Authority Royal from God, which has been insert by our Reformers, to show their abhorrency of their opinion, who think that our Monarches derive their power from the people.  
THere is no such Parliament as that here mentioned to be held upon the 29 of December, 
ACT 33.  1567. and therefore the 33 Act is here renewed, but it was needless to have made a special Act for allowing this to be Printed; for both these Acts 32 and 33 might and should have been one, vid. obs. on this Act in my Crim. Tit. Treason.   

King JAMES the sixth, Parliament 2.  

ACT 34.  BY this Act it is clear that Commissions for Regent's of the Kingdom were then subscrived, whereas they are now superscrived; and were then past under the Privy Seal (as all Factories, Assignations, or other private Rights granted by the King are as yet) but now all such public Trusts are passed under the Great Seal.  
Nota, What was then a Regent is now a Commissioner, which word is but late, and the Regent was then called Protector. The first Commissioner mentioned in our Laws is the Earl of Montrose, for the Parliament 1604. but that Inscription speaks nothing of a Commission under the Great Seal, as all subsequent Inscriptions do from the year 1607. and downwards.  
Many Acts in this and the ensuing Parliament bear, With advice of the Regent, three Estates, and hail Body of the Parliament, which words, the hail Parliament, seems superfluous, for the King and the three Estates are the hail Parliament. But this was probably inserted either to show the unanimity of the Parliament, or to include the Officers of State, because they are not comprehended under any of the three Estates, and this may be adduced to redargue their opinion, who think that the Officers of State did not sit in Parliament till the Parliament 1633. nor do they yet sit as such in the Parliament of England. For I find them marked in the Sederunts very anciently, but differently, for though now they are called, and are also marked down in the Sederunts after the Lord Barons, and are therefore called Lords, yet sometimes the Sederunt adds, after the burgh's, Together with the Officers of State; and the Sederunt of the Par. 15 bear▪ That the King's Majesty, and Officers of State declare the Parliament to run, and ordain the Articles to meet.  

ACT 36.  IT is fit to know that all Alienations and Dispositions made by persons who were thereafter forfeited for Crimes of Treason, are null, if they be made post commissum crimen, though they be made before Sentence or Declarator, and that though it may be pretended that in some latent Crimes of Treason, such as where Treason is inferred for concealing and not revealing Treason, the Subjects could not know the Committers guilt, and so might bargain with them, or take rights from them; but yet such heritable Rights are declared null because the King having Feved out his Lands, he is not obliged to acknowledge any singular Successors, except their Rights were confirmed, & sibi imputent, who did not confirm. This Act is ratified by the 65 Act, 5 Par. Ja. 6. and all former practics contrary thereto are rescinded, which clause in that Ratification was necessary, because as Sinclair observes in his old Practics there had been several Decisions passed in favours of the Earl of Mortouns Creditors, sustaining Rights made by the Earl of Mortoun, who was after 20 years latent guilt convict for concealing the design of murdering the Earl of Lennox Queen Mary's Husband. As these Acts strike against heritable Rights made by forfeited persons, so by the 202 Act, 14 Par. Ja. 6. all Bonds, Obligations, Factories, Pensions and Assignations granted by forfeited persons, are declared null, except these Rights be confirmed by the King, or authorized by a Decreet of the Judge before the citing of the persons forfeited; from which Act it may be inferred, Arg. legis, that such Rights granted post commissum crimen, but before citation are valid, though not confirmed by a Decreet, if they were granted for true debts prior to the committing of the Crime, since this Act runs only against fraudulent Dispositions; as also, for the same reason it may be urged, that where such personal Rights are granted merely to defraud the Fisk, they would be null, though confirmed as said is; for else a man being to commit the Crime of Treason, might purposely dispone his Movables to prejudge the Fisk.  
Nota, That such Movable Rights Confirmed as said is, will only be a ground for diligence against the forefaulted persons Movables, even as if the saids Movables had fallen to the King by single Escheat, but they will not be a ground of diligence against a forefaulted persons real Estate.  
Nota, That as Gifts of forefaulted Lands can only be passed under the great Seal, so the forefaulted persons Movables should be regularly Gifted under the Privy Seal, being as to the King, the same way of Transmission, that an Assignation is to a private party, but in the Earl of Argil's case, it was found that the Movables of the forefaulted person might be likewise transmitted under the Great Seals.  
THough by this Act the Superiors forefaulture does not prejudge the Vassals who are innocent, 
ACT 37.  yet this Act is expressly abrogated by the 201 Act 14 Par. Ja. 6. and by our Law the Vassals Rights are null, except they be Confirmed, or unless he has originally consented to them, or unless the Feus' be set in the Terms of the Act 71 Par. 14 Ja. 2.  
From this Act it may be urged, that since by a special Law, Vassals of persons forefaulted in this Parliament, are secured, notwithstanding of the forefaulting of their Superiors; yet therefore regulariter the Sub-vassals Right falls to the King by the forefaulture of his Superior, or his own forefaulture, and that not as Caduciary for then it would only fall to him with the burden of all Rights granted by the Vassal: But it falls to the King qua superior, so that he is not obliged to acknowledge any Rights, except they be Confirmed by himself; this was debated in the case of General Dalʒel contra Lady Caldwall.  
Nota, The said 201 Act 14 Par. Ja. 6. appoints this Act to be delet out of the Records of Parliament, and this has been designed ofttimes to prevent our taking abrogated Acts, for Acts in force, but yet they are still Printed; and some think this necessary, because men argue oft from abrogated Acts, as from this Act in the said case of the Lady Caldwal.  

ACT 38.  ALL Monks with us were called Friars from the French word, Frere, which signifies a Brother. The Religious Women were called, Nuns, from the Latin word, Nonna, which signifies a sacred Virgin.  
THe Lands holding of Friars or Nuns, are by this Act declared to hold of the King, and all the Lands of Monks and Nuns are by the 29 Act Par. 11 Ja. 6. annexed to the Crown, quoad their Temporality, and though thereafter many of these Benefices were erected in favours of Laic persons; Yet by the 14 Act Par. 1 Ch. 1. The Superiority of all Lands belonging to Abbacies, Priories, and other Benefices belong to the King.  
THis Act is Explained in the Act 36. and is drawn back to all Rights made even prior to this Act, 
ACT 39  by the 65 Act 5 Par. Ja. 6. which is a singular Instance of drawing back Acts prior to the dates.  
THese Acts are Explained in the Observations upon the third Parliament of Queen Mary. 
ACTS 41, 42, 43.    

King JAMES the sixth, Parl. 3.  

ACTS 44, 45, and 46.  THese Acts of this Parliament are Explained in my Criminal Treatise, tit. Heresy.  
Nota, That by the Act 45, Archbishops, etc. were to be punished, being found negligent by the General Assembly of the Kirk, the Bishops before the Year 1606. being but Titular Bishops, and subject to the General Assembly, and were to be deprived by them, as is clear also by the 46 Act of this Parliament.  
By the 46 Act it is also observable that all the Churchmen were then only to give their Oath, for acknowledging and recognoscing His Majesty and His Authority; the Oath of Supremacy having come in only by the 1 Act Par. 18 Ja. 6. By this Act also, nonresidence is declared unlawful, and is yet a cause of Deprivation, except it be dispensed with, the habilis modus whereof is by a Letter from the King.  
BY the 72 Act Par. 9 Q. Marry, the Minister was to have the Parson or Vicars Manse, or so much thereof as should be sufficient for him; 
ACT 48.  and no Kirk man's Manse or Gleib could be feued, yet an Heretor to whom a Vicar's Gleib was feued a year before that Act, was allowed repetition, Feb. 12. 1635.  
Nota. This Decision is otherwise related by mistake in the observ. on the said Act.  
The Manse comes from the Latin Word, Manere, vid. Seldens History of Tithes, pag. 52. By it we understand the Minister's Dwellinghouse, and if the Parson or Vicar had a Dwellinghouse or Manse, it belonged to the Minister, but if there was none of these, no other House could be designed, though it stood within the precincts of an Abbacy, February 11 1631. Minister of Innerkeithing contra John Keir. If there be no such Parson or Vicars Manse, the Heretors must build one by the 31 Act of Parliament 1644. but thereafter by the 21 Act 3 Sess. Par. 1 Ch. 2. The value is declared to be from 500 marks to 1000 pounds, so that the Minister may build a Manse to himself, and he or his Executors will get repetition of what he bestows in building, not exceeding 1000 pounds; but if the Minister build only to the value of 500 marks, he will not have action against the Parochioners for more, though not exceeding 1000 pounds, upon pretence that he might have built to that value, January 8. 1670. Charters contra the Parochioners of Curry: Where it was also found, that the Reparation or Building of the Manse, affects not singular Successors, and is not debitum sundi.  
By that Act likewise it was found, that since Manses are ordained to be built by the Heretors, that therefore Liferenters are not liable, which Decision may be very dangerous to Ministers, since it may oftimes disappoint, or at least for many Years suspend their Relief; as for Instance, if a Father should denude himself of his Estate, in favours of his Son an Infant, reserving only his own Liferent, and it may be doubted whether such Liferenters per reservationem, may not be looked upon as Heretors in this, as they are in some other cases; and yet though Liferenters were not bound to build Manses, yet they were found liable to repair them, these being but minores impensae, which required to be presently done; but neither Heretors nor Liferenters will be obliged to pay what is to be bestowed upon Building or Repairing, nor to stint themselves for that effect, if they have materials of their own. It has been also found that Manses are to be built and repaired where they were burnt or wasted casu fortuito.  
A Gleib is that portion of Land that is to belong to the Minister, Gleba terrae, or a little piece Land, and is by this Act to comprehend four Aikers of arable Land, or 16 soums Grass, where there is no arable Land, Act 7 Par. 18 Ja. 6. These four Aikers are to be designed out of Lands formerly belonging to the Parson or Vicar; and if there be none such, they are to be designed out of Abbots, Prioresses, Bishop, Friars, or any other Kirk-land lying within the Bounds of the Paroch, Act 161 Par. 13 Ja. 6. which order is exactly to be observed in the way set down by this Act, as Dury observes, July 13 1636. Halyburton contra Paterson; yet I find that Bishop's Lands were designed before Abbot's Lands, because that Bishops have greater interest in the Cure; and albeit it may seem that the designing the most ewest or nearest Lands to the Manse for a Gleib be in favours of the Minister, and for his ease; yet the Lordsfound a Designation null at the instance of the Heretor, whose Lands were designed, because there were other Lands nearer to the Manse, for else any Heretors' Lands within the Paroch might be designed for a Manse out of prejudice.  
By the 116 Act 12 Par. Ja. 6. It is ordained, that Ministers who are provided to Churches, where there was no Parson or Vicar formerly, such as Cathedral Kirks, or Abbacies, shall have a sufficient Manse within the precinct of the Cathedral or abbey, except the Heretors of the precinct provide them to as good a Manse, and as commodious.  
These Designations are to be expede according to this Act, by the Archbishop, Bishop, Superintendent, or Commissioner who shall give their Testimonial, how he and two of the Parochioners have designed such four Aikers, presently possessed by such a man; upon which Designation, with a Supplication from the Minister, the Lords of Session are ordained to grant Letters of Horning upon ten days, which is renewed by the 21 Act 3 Sess. 1 Par. Ch. 2. By which it is also appointed, that such Designations of Manses shall be by such Ministers as the Bishop shall appoint, and two or three of the discreetest Heretors.  

ACT 49.  BY this Act beneficed persons being year and day at the Horn lose their Benefices, which fall under their Liferent-Escheat; but it may be doubted, whether these Benefices should fall to the Patrons of the Benefices, as other Lands fall to Superiors, to compense their want of a Vassal, especially seeing where Kirks vaik through the Ordinars not accepting of a presentation, the vacand Stipends are declared to remain with the Patron; or whether these Benefices ought to belong to Universities, and such as have Right to vacand Stipends? Or whether they ought to belong to His Majesty, and to be Transmissable immediately by Gifts in Exchequer, as other Liferenters are? And this last is most conform to our Law.  

ACT 51.  THough it appears by this and other Acts, and by our progresses of Writs, that the Pope used to Confirm Rights made of Church Lands; yet that was never necessary by any positive Law with us, and Feus' even of Kirk-lands, prior to the Reformation, were and are valid, without any such Confirmation; but because about the time of the Reformation, which was the 8. of March 1558. Beneficed persons did dilapidat their Benefices; Therefore by the 7 Act Par. 1584. It was declared that all Feus' not Confirmed by the King or Pope before that time were null.  
AT this time there were two opposite Parliaments sitting, one for the King at Striviling or Stirling by the Earl of lennox; 
ACT 52.  as Regent, and another for the Queen at Edinburgh, and therefore this Act ratifies all that was done by the Parliament for the King, and annuls all that was done by the other, vide Melvils Memoirs pag. 113. vid. observe. on 100 Act 7 Par. Ja. 6.  
BY this Act Excommunicate persons should be Denunc'd Rebels at the Instance of the King's Advocate, 
ACT 53.  or Procurators for the Kirk; but now the King's Advocate is Procurator for the Kirk, after this Denunciation their Liferent-Escheat falls to the King, and all simulat Gifts of them are null, Act 197 Par. 14 Ja. 6. and the Excommunicate persons and their Tenants are liable for the Rents in solidum, but the payment of the one frees the other; Nor will the Defence of fructus percepti & consumpti, for the maintaining of their lives, defend the excommunicate person, as to bygones, the reason whereof is, not because if this could defend quoad bygones, it should defend quoad the future, and so the Act of Parliament would be evacuat, as is alleged in Dury, June 26. 1629. But the true reason is because the excommunicate person cannot be bonâ fide possessor, since he is so frequently cited.  
BY this Act the Archbishop or Bishop may appoint persons for Taxing the Parochioners, for repairing of Churches, 
ACT 54.  if the Parochioners Elected to Tax, refuse, upon which Act the Lords are ordained to grant Letters of Horning, which is extended to the Repairing of Kirk-yard-dykes, by the 232 Act 15 Par. Ja. 6. But it may seem reasonable that the Patron should repair the Church, since the care of the Edifice belongs to him, & ejus est incommodum cujus est commodum, yet our Law burdens not the Patron, But the Parochioners because they get the advantage in it of the Word and Sacraments; for which reason also the Canon Law burdened them in the last place, if there were not a fund for that effect, or if fructus residui ex beneficio, were not sufficient, vid. Paul. de citad. de jur. patr. art. 5. But for this reason, all who are Parochioners should be liable to repair; and yet the Heretors are only liable, and it would seem that these Heretors should be first liable, who have bought in their own Teinds, since they have most advantage by the Benefice, the Rents of which Benefice were by the Canon Law burdened with these reparations.  
By this Act also, if any intromet with the Stones or Timber of a demolished Church, the Bishop's Decreet is equivalent to a Decreet of the Lords of Session, but this is in Desuetude.  
By this Act also the parsons of the paroch should furnish Bread and Wine to the Communion, how oft the same shall be administrated, and it seems that by the word, Parson, should be meant either Rector Ecclesiae, for he is called the Parson, or all the persons who are Parochioners, and which seems reasonable, because they partake of the Sacraments; and yet Heretors are only liable, 2. It is clear from these word, That what is due for Communion Elements should only be due when the Communion is given, but yet Heretors are liable yearly, though the Communion be not given, but it should be then given to the poor in that case, and not to the Minister.   

King James the sixth, Parliament 4.  

ACT 55.  FRom the Narrative of this Act it is observable that the Reformation from Popery first authorized in Parliament in August 1560▪ which observation may conduce to clear many things, both in relation to dates and others which depend upon the Reformation.  
By the Canon Law there could be no Divorce upon Separation, because Marriage is a Sacrament, and so could not be dissolved but by death; but all Protestants allow a Divorce in case of wilful diversion, and therefore by this Act if persons absent themselves, and will not cohabite for four years, they may be cited to adhere, and if Divorce follow, the Wife loses her Tocher, & donationes propter nuptias, and if the Husband be the person who diverts the Wife, will by the same parity of reason get her Conjunctsee, and every thing else to which she could have had right ●f her Husband had died, 21 March, 1637. Lady Manderstoun contra Rentoun; and by our Law the party injured has liberty to marry after such Divorces. The Canon Law requires ten years' diversion, though this Act requires only four years, c. 8. extrav. qui filii, vid. Ritors, de disser, Jur. Civ. & Canon. l. 2. c. 14. but even in that case they grant no Divorcement, but only separationem quoad thorum & mensam: As to the four years prescrived by this Act, it may be doubted whether they should run from the date of the citation only, or from the time of the withdrawing or desertion, and it would appear that since the Act of Parliament says, That if they remain in their malicious obstinacy for the space of four years; therefore the four years should run only from the date of the refusal, either by citation, or at least by being required; and yet the Commissars ordinarily make them run from the date of the withdrawing and desertion simply, though neither cited nor required; and though it would seem by this Act that four years should intervene before the Decreet of Adherence, yet the Commissars will grant a Decreet of Adherence upon a years desertion, or less, if it can be proven to be malicious, or designed, for they think it is enough that four years run before the Decreet of Divorce.  
Since the Act of Parliament requires malicious desertion to preceded the Divorce, it may be doubted whether Citations at the Peer and Shore of Leith to those that are out of the Country, or at the dwelling house to these that are within the Country be sufficient, since they may be so cited without being malicious deserters; and it were hard that a man being taken with Pirates or Robbers, or necessarily absent without knowing of any such Citation, should for 4 years' absence lose his Wife; and though in the Romish Church where there is no dissolution of the Marriage this might be sufficient, since upon his return he might recover his own Wife, yet it is most dangerous with us, and though these Citations be sufficient in other cases, yet there is no parity of reason for their being sufficient here, where malice is required, and where the loss is irreparable. It may be also doubted if a Wife remaining in her Husband's House, but refusing him all access to her, may be said to have diverted, and I conceive she may, for all the reasons in the one case conclude against the other.  
The form of Process here set down, seems to be borrowed from the Saxon Law, related by S●edvin. ad tit. Instit. de nupt. Par. 4. the divert. & Harprech. ad part. 11. the nupt. num. 131. & seq. and lest this Process may proceed from Collusion, by the Husbands being desirous to divert upon design to obtain a Divorce: therefore by our Law the Pursuer is obliged to swear that there is no such Collusion.  
In place of Letters in the four Forms mentioned in this Act, Letters of Horning are now summarily granted on all Commissars Decreets, Act 7. Par. 21. Ja. 6. as also on the Decreets of Sheriffs, Steward's A●ts, Bailies, etc. Act 177.13 Par. and Act 10 Par. 18 Ja. 6. for of old Horning being under the Session's Signet, 〈◊〉 only granted on Decreets of the Lords.  
THis Act is in Desuetude, 
ACT 56.  for Salt may now be lawfully transported, but then we had not enough to serve the Country.  
BY this Act every Cowper is to put his own mark upon his own Barrel; but by the 141 Act, 
ACT 57  8 Par. Ja. 6. there are Staples appointed for Salmond▪ where a Gadge and mark is to be kept.  
THis Act relates to the time wherein Grange kept the Castle of Edinburgh for the Queen. 
ACT 58.    

King JAMES sixth, Parliament 5.  
BY this Act Ministers Gleibs are not to pay Teind, 
ACT 62.  which is extended by the 162 Act Par. 13. Ja. 6. so far that Ministers Gleibs are thereby to be free from all Impositions whatsoever, and it was found the 9 of June, 1676. Burnet contra Gib, that not only Glebe's of Kirks established by Law were to be free, but even Gleibs of Chapels where there was Divine Service ordinarily; and this privilege of being free from Teinds was to be extended not only to Ministers Gleibs, whilst they were possessed by the Ministers themselves, but that even the Gleibs of Vicars were to be free from Teinds, when come in the hands of Laics, except it could be alleged that within these 40 years bypast these Laics had paid Teinds for these Gleibs, albeit this Act of Parliament be only conceived personally in favours of Ministers, but not really in favours of Parsons or Vicars Manses, 16 July, 1678. Earl of Queensberry contra Dowglass. This Act is conform to the reformed Churches abroad, vid. Carpz. jus consist.  

ACT 63.  BY this Act the Lords are ordained to direct Letters of Horning at the Chancellors and Bishops instances, for charging the havers of Writs belonging to Hospitals summarily to produce them, and the Clerk of the Bills having refused to pass a Bill upon this Act, as being in Desuetude, and as having been at first but temporary, because it ordains a report to be made betwixt and Pasch next, yet the Lords ordained such Letters to be granted, and found the Act neither temporary, nor in Desuetude, January 1667. Hospital of Northberwick.  

ACT 64.  VId. observe. on the 111 Act, 14 Par. Ja. 3. and on the 119 Act, Par. 7 Jam. 6.  

ACT 65.  THis Act is explained in the 36 and 39 Acts 2 Par. Ja. 6.  

ACT 66.  THough by this Act it is declared only that in the competition betwixt such as have obtained Confirmations from the King, the last Right first Confirmed shall be preferred, yet this holds also in Rights, holden of other Superiors, because if the Right be given to be holden of the Superior, & a me, it is no complete Right till it be confirmed, and the first complete right is to be preferred.  
Nota, From this Act that the Lords of Exchequer ought not to refuse to grant Confirmations, & de praxi, if they refuse, the King's Vassals protest that their refusal shall not prejudge his right. But I find that where many Creditors were confirmed in one day, the Lords preferred them according to their diligence, and there having taken Seasine, and not according to the date of presenting the Signatures, since neither were negligent, nor had used precipitation, for they shunned to determine that the Exchequer had not preferred or brought in all justly, for that were to make the two Courts interfeer, 6 December, 1678. Mill contra Pasoules; But in the competition betwixt two Confirmations, the Lords found that the first who had past the Seals was to be preferred, and that the preference of the Confirmation was to be judged by the passing the Seals, and not by the date of the Signature, since it is not the Signature, but the Charter that prefers, because a Charter first past the Seals, though upon a posterior Signature, will be preferred as the more complete diligence, the Seal being in place of the King's Subscription, and consequently the date of the Charter is not still to be looked to, since the Charter bears still the date of the Signature, and the date of the passing of the Seals is proven in our Law by an attestation under the hand of the Keeper of the Seal; for though that attestation may seem to be the testimony of only one Witness, yet it is actus officii, and the Minut-Book is a sufficient check upon his attestation, 26 February, 1680, Clackmannan contra Earl Wigtoun.  
It is also observable from this Act that albeit the Keepers of the Seals are discharged to pass double Confirmations of Rights of the same Lands, yet de praxi the Exchequer and Seals pass very frequently such double Rights periculo petentis, and though where the obtainer of the first Right cannot instantly exclude the second, as by clearing that the granter was denuded, and so the second Right was null. There may be some pretext for granting such double Rights, periculo petentis, the Exchequer not being Judges competent to the competition of double Rights, yet where the first can clearly and instantly exclude the second, there is no reason for passing the second, for by passing such double Rights, the first is put to the necessity of a Reduction, since no Right once passed under the Great Seal can be annulled by way of exception, but only by way of reduction; and since the second right, though null, may be the foundation of a Prescription, and will establish a full right in the obtainer, if he continue 40 years in possession.  
THis Act prohibiting Flesh to be transported in Ships, except in so far as is necessary for Victualling the Ships, 
ACT 67.  is now in Desuetude.   

King JAMES the sixth, Parliament 6.  
IT is observable that in this Act is said, that Our Sovereign Lord has declared and granted Jurisdiction to the Kirk, 
ACT 69.  which consists in the Preaching of the Word, the correction of Manners, and the Administration of Sacraments, which infers that ecclesiastics have no temporal Jurisdiction save from the King, which the Canons have also acknowledged, as shall be cleared in the Act concerning the Supremacy: But they are acknowledged to have had an Ecclesiastic Jurisdiction, for the Act bears, Has declared, and this Ecclesiastic Jurisdiction is declared to consist in Preaching, Correction of Manners, and Administration of Sacraments.  
THis Act discharges Gaming and Drinking in Alehouses on the Sabbath, and is considered in the Act 83. Par. 6. Ja. 4. 
ACT 70.   
THough such young Noblemen or Gentlemen as go abroad, 
ACT 71.  need not now Licences from the Council, nor to make application to the Bishop or Superintendent within 40 days after their return, yet if the Council suspect that they are like to change their Religion, they use to cite the Parents, and to force them to bring home their Children, or else to Imprison or Fine them as they see cause. This Act was renewed by a Proclamation of Council, January, 1679.  
BY this Act the Labourer is to require him who has right to the Teinds, to come and Teind within 8 days after the Shearing, 
ACT 72.  by making premonition on three Sabbath days after the Shearing, which is by the 48 Act, Par. 11. Ja. 6. restricted to two Sabbaths; and thereafter by the 5 Act, Par. 21. Ja. 6. It is appointed that the Teinding beat three several times, viz. the In-field at one time, the Bear at another time, and the Out-field Corn at a third time, and that 8 days intervene after each complete Shearing; but all this is innovated by the form set down very fully, 9 Act, Par. 22. Ja. 6. Which last Act is now in observance, and being fully considered needs no further explication.  

ACT 74.  VId. crim. pract. tit. Idle Beggars, and observ. on the 16 Act 3 Sess 1 Par. Ch. 2. Where this Act is Ratified and enlarged; In this Act excellent Overtures are set down for punishment of Vagabounds, and these who flee from their Master's Service, who by this Act are appointed to be burnt in the Ear, and Scourged for the first Fault, and to suffer Death for the second; so far can the repeating of a Crime heighten its punishment, even in mean Crimes: analogical to this Act is the Tit. ff. de Fugitivis, where likewise many excellent Overtures are proposed.  

ACT 75·  ALbeit by this Act, all the Hornings are to be Registrated in the Sheriff-Books of the Shire; where the Rebel lives: Yet by the 265 Act 15 Par. Ja. 6. In case the Sheriff refuse to Registrat the same, it is sufficient that they be Registrated in the general Register; but if the Horning be for a Criminal Cause, it must be Registrated in the Books of Adjournal, Act 140 Par. 8 Ja. 6.  
Observ. 2ᵒ. That Horning against Witnesses need not be Registrated at all, nor can Witnesses Escheats fall upon such Denunciations, because it were hard to put the pursuer to so much expenses, or to make an Escheat fall for a negligent Contumacy.  
Observ. 3o. That Denunciations at the Mercat Cross of the Shire where the Rebel Dwells, should only debar Rebels, ab agendo, and not Denunciations at the Mercat Cross of Edinburgh, as was found January 24. 1674. Blair contra Blair; and even these Defenders who are Denunced at the head Burgh of the Shire, cannot be debarred from proponing that which requires their personal presence, nor are their Creditors or Assigneys debarred from pursuing.  
Observ. 4ᵒ. Though by this Act the Thesaurer has power to intromet with the Rebel's Goods, and may raise Letters for that effect, which were called Letters of Intromission; yet now Escheats must be Gifted, and the Donatar must raise Summons of general Declarator thereupon, wherein it must be tried, if the Rebel was lawfully Denunc'd; and after general Declarator, he must have a Decreet of special Declarator, which is in effect only a Decreet for payment, though it be abusively called a special Declarator; and the former Letters of Intromission are justly found not to be legal now.  
The affixing a Roll of the Rebels Names here mentioned, is in Desuetude, except as to fanatics, and these who pay not the King's public Dues.  
Some doubts concerning this Act are Explained in the Act 142 Par. 8 Ja. 6.  
THis Act is Explained, Crim. pract. tit. Libels. 
ACTS 76,   
BY this Act the pains of breaking Lawburrows, is to be divided equally betwixt the King and the Party injured; 
ACT 77.  and the reason of this is, because the King is injured by the breaking of the Lawburrows; The Charge of Lawburrows being in His Majesty's Name; and though ordinarily the Party Charged finds Caution of Lawburrows; yet if after the Charge any prejudice be done, the party Charged is liable, because the Charge is contemned, July 8. 1628. Semple contra Cuninghame.  
The civil Action whereby this breach of Lawburrows is pursued, is called An Action of Contravention, and must because of this Act of Parliament, be raised at the King's Advocat's instance, as well as at the instance of the party injured, and the pursuers Title is the Charge, if no Caution be found, or the Extract of the Bond of Cautionry, if Caution be found; the ordinary Deeds whereby Contravention is inferred, are beating or striking the party to whom the Lawburrows is found, or his Servants, except the Servants or Tenants were beat upon a special account, no ways relating to the Master; which speciality must be proven, or else it's presumed to have been on the Master's account; and for the same reason it is, that though the stile of Letters of Lawburrows bear, That the Complainer, his Men, Tenants and Servants, etc. shall be Skaithless in their persons, Lands, Heretages, Goods and Gear; Yet the taking of two Horse from the pursuers Tenants, was not sustained to be a Contravention, because that was not done on the Master's account, nor was the Tennent himself pursuer, January 28. 1632. Grant contra Grant. Nor was for the same cause, the breaking up the Tenants' House, and taking some Goods out of his Chest, found a Contravention, February 9 1633. Lindsay contra Denniston. But since it was not a Contravention, because the Master was not concerned in the Injury as these Decisions bear, I see not how the Tenants concourse could have altered the case, quoad the Contravention, though in both cases the Tennent may pursue damnage and interest.  
All Lawyers are clear, that there must be clear grounds of Injury alleged, and therefore feeding bestial upon controverted Lands, is not sufficient, December 20. 1592. But in mutual Contraventions upon that head; The Lords allowed both parties to turn their Libel in a Molestation, and granted Commission to Examine Witnesses hinc inde, January 24. 1663. Rouchlay contra Wood Nor would the Lords find that pasturing upon waste High-land-ground, should infer contravention, except it had been done by the Master's Command, or frequent herding to his knowledge, July 8. 1664. Earl of Airly contra Mcintosh. But yet if Deeds of Violence be done, even upon debateable Lands, that will infer Contravention, such as the hoching of Oxen.  
This animus injuriandi is so necessary, that Deeds done by drunken-men, are by many Lawyers thought not to infer a Contravention, Christin. Tit. 4. Art. 8. and the adulterating the pursuers Wife, will not infer a Contravention, because this is not done animo injuriandi, but animo libidinoso Christin. Art. 7. He likewise thinks, that threatening real injuries is sufficient, and threatening is a great breach of the Peace, especially when it is by a man who uses minas prosequi, but verbal injuries, per se, are not thought sufficient by Lawyers, nor have we any Decision sustaining a Contravention on that head.  
Since by this Act the King and the Party have different interests, therefore Imprisonment or paying of a Fine to the King by prior Sentence, will not exclude a pursuit of Contravention at the party's instance, March 20. 1623. Futhie contra Carmichael, and January penult, 1622. Johnston contra Laird of Westnisbit. And certainly that Decision related by Hope tit. contravention Forrest contra Turnbul; Where it was found that the King's Advocate could not insist alone in a Contravention, if the party injured discharged the Deed, though after the intenting of the Cause, is an illegal Decision; for seeing the King is injured crimine fractae pacis, and that by this Act the King has right to the half of the penalty, and had formerly right to all by the 5 Act Par. 1 Ja. 3. The party cannot Discharge the King's part. Contravention is a penal action, even at the private party's instance; and therefore titulus coloratus, will defend against it, and thus a Contravention being libelled, as inferred from the casting of a Ditch, whereby the pursuers Land was overflowed. The Lords found that a consent from the pursuers Father, though he was but Liferenter, did defend against that action, January last 1633. L. Weyms contra L. Gairntilly, Without prejudice to pursue an Action of Damnage and Interest; to which the Lords turned this Libel, without necessity of a new Process. And this action is likewise elided for the same reason, by subsequent Dissimulation; and therefore a pursuit of Contravention, founded upon cutting of Trees in the pursuers Wood, was elided by the same pursuers granting Licence thereafter to the same Defenders to cut in the same Wood; which posterior Licence the Lords found did infer a presumptive Remission, January 11. 1633. Denniston contra Lindsay. Nor is this Contravention inferred by Injuries, done upon provocation or self-defence, but though provocation seems to be good against the provocker, yet it seems not to be good against the King; and it may be doubted whether the penalties of the Acts of Parliament may be sought, by and attour the damnage and interest, or if the damnage is to be a part of the penalty.  
HOpe observes from the Narrative of this Act, 
ACT 79.  that as only Landed men can be Judges in Perambulations, so Landed men ought only to be received Witnesses in heritable Debates; but this Observation holds not in our Practic, which allows any habile Witnesses in perambulations, and all other heritable Debates.  
BY this Act all heritable Obligations, or Writs of importance, 
ACT 80.  are to be subscriv'd, and sealed before two famous Witnesses, if the parties can Write, or by two famous Notars, before four famous Witnesses, if they cannot write.  
Observ. 1ᵒ. That Sealing is not necessary, but Subscription is sufficient in parties, and is not necessary in witnesses by this Act, though it be requisite by the 5 Act 3 Par. Ch. 2. even in Witnesses also; and though the Sealing be only remitted in Papers to be Registrated by the 4 Act 9 Par. Ja. 6. Yet it is not necessary in any Writ by our present Custom.  
Observ. 2ᵒ. That in our practice; all Writs exceeding an hundred pounds, are Interpreted to be Writs of importance, and so to need Witnesses, January ult, 1623. But if any sum be to be annually paid, that Writ whereby it is to be paid, requires Witnesses, though never so small, because yearly Prestations may arise to a considerable sum, July 4. 1632. and though sums above 100 pounds, require Writ; Yet Intromission with Victual or any thing else, probable by witnesses, as all other things consisting in facto be; as also, intromission with uncoyned Money or Silver in mass, is probable by Witnesses, though exceeding 100 pounds: But promises & nuda emissio verborum, though for less sums than 100 pounds, are only probable by Writ, because By standers may mistake the position and force of Words, January 19 1672. Douchar con. Brown.  
Observ. 3o. This Act is only to be extended to such things as require Writ, ex sua natura; and to which Writ uses to be adhibit for Merchant-bargains made in Mercats, do not require W●●t, and so are probable by Witnesses; for men use not, nor cannot adhibit Writ in such cases; nor are Witnesses requisite in Discharges granted to Tenants by the Masters, because of their Rusticity, and the smallness of the sums: Nor are Witnesses requisite in Contracts of Marriage, upon which marriage has followed, nam notorietas facti habetur pro testibus, July 1. 1662. Breidie contra Breidie. But it may be doubted whether this holds in Strangers, such as are third parties; and I think they are not obliged to pay the Tocher, though it certainly holds in the Man and Wife themselves who Contract; and though it hold not in third parties, who are mere Strangers; yet it should hold in the Father, when he obligeth himself to pay the Tocher, where there is a tripartite Contract subscriv'd by many parties, they are in place of Witnesses to one another, all parties having subscriv'd, July 19 1676. Forret contra Veitch. And a Writ having the Substantials filled up with the Granters own hand, is equivalent to its being Subscriv'd by Witnesses, January 23. 1675. Vans contra Malloch.  
Observ. 4ᵒ. Though the sum exceed an hundred pounds; yet if the pursuer restrict his pursuit to an hundred pounds, it is probable by Witnesses, July 7. 1629. Wallace con. Muir.  
Where the parties cannot write, two Notars and four Witnesses are required by this Act; But yet a Merchant's mark is sustained, if it can be proved, that he used to subscrive so, February 1. 1669. Brown contra Johnston. But this is only sustained amongst Merchants, and to facilitat Commerce: But it seems that in Law, no such mark should be sustained, except where the writ has witnesses also. Subscription also by the Initial Letters of the Subscrivers Name, is sustained, if the Subscrivers be proved to have still Subscrived so, these Instrumentary Witnesses are presumed to have been chosen by consent, and therefore Sons, Servants, etc. may be Witnesses; and it may be doubted if Women may be Witnesses in Writs; but it is still sit to choose disinterrested Witnesses, for if the Granters own Relations be witnesses, and one of two of them deny his Subscription, the writ will be reduced as null, though not improven as false, as was found in Nimmo's case.  
These Witnesses are by this Act to be designed by their special Dwelling, or some evident token, by which they may be known, as to which.  
Observ. 1ᵒ. That though Designation by the Dwelling-place, be declared sufficient by this Act, yet if that Designation be too general, as that the witness is In-dweller in Edinburgh, and that there be many of that Name there: or the person cannot be known by that Designation. The Lords will ordain them to be more particularly condescended on, even by an assignee, who may pretend that he is not obliged to know who the witnesses were, but that it was sufficient for him to see that the Bond had witnesses, but yet that the Witness was Servitor to the Earl of Southesk, though the Earl had more Servants of that Name, February 7. 1672.  
Observ. 2. That though the Act say that the Writ shall be null, if the Witnesses be not designed in the Writ; yet the Lords will allow the Pursuer to design the Witnesses if they be insert, though the Witnesses so designed be dead, and many years have interveened since the Writing of the Paper, but in that case they will ordain the designation to be astructed per comparationem literarum, and an Oath in Supplement, 15 July, 1664. Colvil contra the Executors of the Lord Colvil; but if the Writ mention no Witnesses, the Lords will not allow the Pursuer to condescend who were Witnesses, and to design these Witnesses, 24 Jan. 1668. Magistrates of contra the Earl of Finlator. All which holds only in cases arising from Writs prior to the Act, 5 Par. 3. Ch. 2. By which Act Witnesses must be subscriving and designed, else the Writ is null.  
I find this whole Act was verbatim made in France at Moulins, Anno 1556. and has been brought in here very shortly after, viz. 1579. There is a learned Commentary writ upon it by Bosellus, Borderius, which may be very useful in our practice. I find also that by the Edicts in Flanders, nothing can be proven by Witnesses above 300 pounds, vid. Stockman. Decis. 120.  
BY this Act, Spuilyies, Ejections, 
ACT 81.  and others of that nature prescrive in 3 years.  
O●s. 1. That though the action of Spuilyie and Ejection prescrive quoad the specialties indulged by the Law to these actions, which are, that violent profits will be granted, and that if the Pursuer prove that the Spuilyie or Ejection were committed, he may tax his own damages per juramentum in litem, yet if the Pursuer restrict his Action to wrongous' intromission, or re-possession, he may pursue for the same at any time within 40 years, 16 March,, 1627. Inglis contra Kirkwood.  
Observ. 2. That from these words in the Act, And others of the like nature, The Lords have found that an Action of Intrusion prescrives within 3 years, 2 February, 1610. As also, that an Action for demolishing of a Miln, or an Action intented for the damage and interest sustained in ryving out a common Moor, and generally all such Actions as arise from violence, and infer upon that account extraordinary damages, do prescrive within 3 years, quoad the extraordiness of the damage.  
Observ. 3. That nothing but a formal pursuit of Spuilyie interrupts this prescription, and therefore an action of oppression and depredation intented before the Justices, was not found sufficient to interrupt this prescription, though that was a more exuberant conclusion, and so included Spuilyie as a lesser, and the Justices are Judges ordinar also; and by this Act it is enough to pursue before the Judge ordinar, 8 February, 1676. Master of Rae contra Dumbeath.  
Actions of removing prescrive so (if not pursued within three years) that there must be a new Warning before any removing can be intented, 
ACT 82.  and the Lords have found that these three years are to be computed from the time to which the Warning is made, but not from the date of the Warning.  
BY this Act all actions for House-mails, 
ACT 83.  men's ordinar Servants Fees, Merchant Counts, and other like debts prescrive in three years.  
Observ. 1· That these actions are not absolutely extinguished by the prescription, but after three years they become probable only by Writ, or Oath of the Defender, whereas if they had been pursued within three years, the debt was probable by Witnesses, and this Act is founded as I think upon the presumption that men would not suffer such debts to lie over for longer than three years, without taking an obligation for them in Writ, and the presumption lies for their being yearly paid, and that which was praesumptio hominis, is after the current of three years made here praesumptio juris & de jure & lex statuit super prasumpto.  
Observ. 2. These words, Or other the like debts, that are not founded upon written obligations are dangerous, as all such general clauses are, which make the people unsecure, and the Judges Arbitrary; and though one would think that mails and Duties of Lands ought to prescrive as soon as any of these, since it is not presumeable that these would be suffered to be unpaid, yet it was found they did not prescrive in three years, 20 January, 1627. Ross contra Fleming.  
By this Act House-mails, etc. prescrive, if they be not pursued within 3 years, and therefore the Libel for such debts is not relevant, except it be expressly Libelled that such duties were owing, and are yet resting unpayed, and consequently the Tennent may depone that he possessed but that he paid, which quality is receivable, and yet if the Tennent depone simply that he possessed and forgot to adject the quality, the Lords would not sustain it to be adjected ex intervallo, at the advising of the Cause; or in a Suspension or Reduction, unless the Tennent could prove that the Master would not suffer the quality to be received, or would offer to prove payment by the Master's Oath.  
Observ. 3. It may be doubted whether this Act ordaining Merchant Accounts to prescrive in 3 years, doth reach to Counts owing to Strangers, for they seem not obliged to know our Law, and this would ruin all Commerce & locus contractus semper attendendus. But it was found that this Act does extend to all Merchant Goods, as well when sold in gross as by retail.  
It may be doubted whether these two last Acts run against Minors, since it is provided expressly that Prescriptions against Spuilzies and Ejections shall not run against them, which shows that if this had been designed in the other Prescriptions, the same Clause had been renewed, since it was under consideration, and so seems not to have been forgot only, and there seems to be some reason for this, since Minors are prejudged by Spuilyies and Ejections, and so Prescriptions in these should not run against them, but in remove the hazard is only that a new Warning must be used, and in other the like debts, the only loss is that the debt cannot be proved by Witnesses after three years, and so since these prescriptions did little hurt to Minors, it was not necessary to stop their course. It is also observable, that though all these Prescriptions run in 3 years▪ yet if actions be once intented, they stop the prescriptions, and thereafter Spuilyies, Remove, or Aliments, etc. do not prescrive in less time than 40 years, as all other debts do; and till then violent profits are due, or the like debts may be proved, as if the action had been pursued within 3 years, 26 January, 1622. Herring contra Ramsay: As also by our late Decisions, if the Pursuer has continued to employ a Merchant the currency of that Compt, and trust will preclude the prescription, so that many former years preceding the three last may be craved, though this Act ordains all Merchant Counts to prescrive within that time, but if a Bond be taken for these posterior years, it is thought that cannot be called a current Compt, and it may be debated whether in Law one or two Articles will make a current Compt, and if it do, there may be many ways taken to elude this Act, vid. 16 December, 1675. Somer●el contra the Executors of Muirhead. This currency extends to Brewer's Counts of furnishing, 13 November, 1677. Wilson contra Ferguson▪ (Vid. Sand. lib▪ 5. Decis. Tit. 6.) Though it was alleged that albeit it should hold in Merchant Counts where there are Discharges taken, and where a Compt Book adminiculats the receipt, yet it ought not to be considered in furnishing of Ale, where neither of these are observed; and yet this currency was not respected in Servants Fee●, for these same reasons, and because a Servants Fee is altered at the Master's discretion, 12 February, 1680. Ross contra Mr. Salton.  
VId. Crim. Obs. Tit. Forestallers, and Tit. 32. 
ACT 87 88   
IT may be doubted whether this Act that gives power to the Sheriffs and other Judges, to throw down Cruives and Yairs, 
ACT 89.  aught to be extended to Dykes built over waters, or a part of the water, for making a Dam to a Miln.  
2ᵒ. Whether Sheriffs or Lords of Regality, etc. may execute this Commission for their own advantage, and where they themselves are the parties grieved, since that were sibi jus dic●re, and they would probably be partial, whereas they may get others to execute the same.  
THis Act Discharging exportation of Coals is now in Desuetude. 
ACT 90.   
THis Act Fining such as propone unjust exceptions, or lose the Pley within Burgh, for the use of the poor, 
ACT 91.  is conform to that Title in the Civil Law, instit. de panis temere litigantium; For there can be nothing so absurd and unjust, as that men should not at least have their true expenses upon Oath▪ whereas we use to modify little or nothing, even where there is not the least colour for a pursuit, or defence, and this I think a great iniquity in all Judges who are guilty of it. Vid. instit. de paen▪ temere litigantium.  

ACT 92.  BY this Act the Lords of Session are ordained to distribute Justice without respect to any private writing impetrat from His Majesty, and by this His Majesty is freed from importunity, and his people from unjustice. This was formerly statuted by King David 2. cap. 18. & cap. 41. and by the 2. cap. Statut. 1. Rob. 1. Judges are ordained to Judge secundum leges antiquas; and in the Civil Law, per l. 1. & 6. C. si contr. jus vel util. publs. & per novel. 82. cap. 13. and in the Canon Law, cap. 5. the Rescript. This same Law is also in France, and is Learnedly Treated by Rebuff. ad constitut. Reg. tit. de rescript. and Plutarch commends Antiochus for having made a Law in these same terms; but though the former Statute of King David warrants the Judge not to respect that Command, but to endorse and send back the warrant, and not execute the unjust Command, which is by the 41. cap. of the same Statutes extended so, that they are not obliged to delay Justice upon any such private warrant; Yet I find by §. 10. cap. 20. of these same Statutes, that the King may Discharge or Prohibit a Judge to proceed in the case of Perambulation, for certain Causes; for reconciling which Statutes, it must be answered, that the King cannot either simpliciter discharge a Perambulation; nor any other Process, but that he may discharge it for weighty Causes, relating to the public, to which all private interests must cede even as he may remit Crimes for such causes, though these be of greater consequence, or rather that the King may discharge Perambulations, because the public Peace is oftimes concerned in these, since there used to be ordinarily great Convocations at such Perambulations; and therefore the Justice General was of old only Judge competent to Perambulations. Upon March 4. 1553. The Queen Regent appears in the Session and declares that the Lords should proceed to do Justice, notwithstanding of any Letter or Order from her, which is marked in the Books of Sederunt.  
Observ. 2. That before this Act the Council used frequently to discharge the Lords of Session, to proceed in judging private Causes, whereof many Examples are to be seen in Hopes larger Practics, and an instance of it is to be found in the 94 Act of this Parliament; but that Custom is here discharged, and as yet the Council uses frequently to discharge the Justices to proceed. And notwithstanding of this Act, I find in the Registers of Council, 1581. King James Revocks in two several Cases, Gifts granted by himself, and Discharges the Lords of Session, to sustain Action upon them.  
Observ. 3o. That the Lords are also allowed to proceed, not only to decide, but also to cause Execute their Sentences, notwithstanding of such private writings, Charge or Command, so that the Privy Council cannot Suspend the Lords Sentences, neither by an Act of Council, nor yet by Letters under the Signet; But yet the Privy Council, by virtue of their late Commissions, are allowed, and do usually grant Protections, whereby the Executions of the Lords Sentences are oftimes stopped.  
IN so far as this Act Discharges the Lords of Session to take Buds or Bribes, I have Explained the same, 
ACT 93.  crim. pract. pag. 248.  
Observ. 1ᵒ. That the Lords are allowed to reject any person whom the King presents to them to be a Lord, if he be not qualified and of good fame; and therefore the Lords used when the King presented any person to be a Lord (which was by a Letter direct to the Session, wherein the King did nominat him a Lord) to name some of their number to Examine him. But now the Form of Trial is more severe, and is set down in his Letter direct by His Majesty in anno 1674. whereby they are immediately after Pleading to resume the Debate, and to give their Opinion first in a Cause Debated in praesentia, and to sit with the Ordinary in the Outter-house, and to report some Causes there Debated, and to give their own Opinion, with the Reasons thereof.  
Observ. 2ᵒ. That by the first Institution of the Session, the Precedent was still an Ecclesiastic person, and of the Dignity of a Prelate, as this Act says; and yet I see no such Article in the first Institution; but however, that is here dispensed with for the future; For by the 96 Act 5 Parl. Ja. 5. It is only said, that the Session shall consist of fourteen persons, the one half Spiritual, and the other Temporal, with a Precedent.  
BY this Act the Tenor of Letters of Horning, 
ACT 94.  and of the Executions thereof, cannot be proven by witnesses; The reason whereof I conceive to be not only, because upon such Letters, men's Escheat and Liferent may fall, and that were of too great Importance to be proven by witnesses, since our Law does not allow any Debt above an hundred pounds to be proven by witnesses; But because witnesses can neither know nor remember the exact Tenor of all the formalities of Executions and Stamping thereof; and so strict are the Lords in the Observation of this Act, that after the Horning and Executions were Registrat, they would not allow the Messenger to add the word, Three Oyesses, in his Executions, though he offered to prove that there were truly three Oyesses, and was content to bide by the Execution so amended, and that the Executions did bear the words, Thee Oyesses, which wanted but the Letter R, to make the Oyesses▪ three Oyesses, Vid. July 28. 1671. Sir John Keith contra Sir George Johnston; and July 11. 1676. Stev●●son contra Inns.  
It may be 〈◊〉 whether the Tenor of such Letter● may be proven, if there 〈…〉 other Adminicles in writ, since even Papers of the greatest importance may be thus proven by witnesses, and there is no Paper whereof the Tenor may not be proven, nor is the proving of a Tenor here discharged, and if the Letters of Horning and Executions be Registrat, the Registration takes both off the Suspicion of Falsehood, and makes the witnesses who are to Depone know what Solemnities were used; but yet it will never appear by the Registrat Extract, whether the Executions were stamped, and yet this point being sacti, may likewise seem to be probable by witnesses who saw the same stamped. In the case betwixt Boyd and Malloch, December 19 1677. The Lords inclined to think, that even Executions of Hornings being once perfected by writ, and thereafter lost, might have their Tenor proven, though by this Act it would not be originally proven, that Letters of Horning were execute, but they were all clear that this Act was siricti juris, and did not extend to Executions of Comprizing; and therefore they found that the Tenor of such Executions might be proven.  
Nota, That a Registrat Extract will not stop a Certification when a Horning and its Executions are called for, but the principal must be produced.  
The Parliament having ordained that the witnesses to be used for proving the Tenor of the Executions should be led in the Lords own presence. It may be urged argumento ●ujus legis, that witnesses for proving of all Tenors, should be led in praesentia, and which is very reasonable, because proving of Tenors is nobilis officij, & altissimae in daginis.  
It is likewise observable in this Case, that though the Parliament made an Act for regulating that point for the future; yet they left the Decision of the Case depending to the Common Law.  
IT is fit to know that there being a Staple appointed where all Staple Goods to be brought from Scotland, 
ACT 95.  are declared free of all Custom laid upon Imported Goods, which was a very great favour. It was therefore very just that no Merchant should have liberty to enjoy the privileges of the said Staple, except he would give his Oath of obedience to the King, and pay his entry in that Incorporation. This and the subsequent Act are still in observance, and the Conservator uses to raise general Letters against such as break the same, by warrant from the Council who are the ordinary Judges in these cases, except where matter of private right falls in.   

King JAMES the sixth, Parliament 7.  
BY the old Canons all ordinations were null wherein the persons ordained was not entitled to a certain Church, 
ACT 100  Can-Sanctorum distinct. 70. and thence it was that all Ministeria vaga, wherein a man was ordained a Minister, without respect to any particular Church or charge, were discharged by our Church, though in the Lateran Council thereafter the ordination was allowed, but the Bishop who ordained was obliged to Aliment the Churchman ordained, without a suitable living.  
By this Act parochs are to be designed and circumscribed, and every Paroch to have its own Stipend and Pastor, but this quota was not determined till the Commission of surrender of Teinds in anno 1627. determined that the lowest proportion of a Ministers Stipend should be 8 Chalders of Victual, or 800 Marks, which Act is thereafter Ratified by the 8 Act of the Par. 1633.  
It is also provided by this Act, that all Kirks annexed to Bishoprics be provided to Ministers, and when the Title of any Prelacy is conferred on any, that the said Stipend be reserved, the reason whereof was, that the Pope used to unite Paroches and Benefices to Bishoprics, upon pretext of the meanness of Bishoprics; and therefore in the beginning of the Reformation, when Titular Bishops were made, it was thought just that these Paroches should be again provided with special Ministers.  
We call him a Titular who has the Title of a Benefice, & qui est in Titulo, and thus the Seculars who had right to the Teinds due formerly to the Church, are called the Titulars of the Teinds, and by the old Canons it is clear; that quaedam beneficia a titulo pendent quaedam a reditu, and these Tithes are in the Ecclesiastic History said to have had their Origine, either ab intitulatione in Codicem & matriculam cujuslibet Ecclesiae un de intitulari dicebantur in Canon. Sanctorum, distinct. 70. or from the old custom of fixing upon the Altars or Churches the Titles of these who were presented to it: some also think that most Offices in the Church had their denominations from the Offices in the State and Army, there being an Analogy inter militiam armatam & Coelestem, and that there were Titulars allowed in the one as in the other, vid. Bengaeum de titulis beneficiorum, cap. 1. It is clear by the said Canon. Sanctorum distinct. 70. that singula beneficia certo loco & Ministerio circumscripta erant, as in this Act of Parliament.  
BY this Act it is not lawful for any who are provided to Benefices under Prelacies, to dilapidat their Benefices. 
ACT 101.  That is to say; to set them with diminution of the Rental which they paid at their entry; and if the Minister contraveen, he is to be deprived, and the right to be null. But by the 11 Act, Par. 10 Ja. 6. All Rights made by Prelates with diminution of the Rental, are null, and the conversion of Victual payable to them into Money, below the worth, is by that Act declared a diminution; they are also thereby ordained to find Caution not to dilapidat the Benefices. Likeas by the Act 3 Par. 18 Ja. 6. the dismembering any part of the Benefice, is declared a species of diminution, and so null. It has been justly doubted whether a Bishop obtaining certification in an improbation whereby the Land returned to the Bishopric might thereafter dispone these Lands by a new right; and it has been decided that this was no dilapidation, if given for the same Rental or Feu Duty they paid before the Act 1606. for such certifications being frequent, and the design of these certifications being only to force the Fevers to produce, it were hard to extend them, especially since the design of these Acts is only to hinder the Beneficed Persons to diminish the Rental and value of them the time of their entry, 27 January, 1676. Bishop of Caithness contra his Vassals. It seems that there is eadem ratio for sustaining Rights by the Successor of that Beneficed Person who obtained the certification, though it may be alleged against him that he is obliged to leave the Benefice in as good a condition as he found it: It may be alleged that the same reason should sustain Rights made by Beneficed Persons who have obtained Reduction, ob non solutum Canonem.  
These Acts are so comprehensive, that the Act 5 Par. 22 Ja. 6, seems unnecessary.  

ACT 112.  BY this Act if any man was robbed by any of a Clan, he may kill or arrest any of that Clan, if it be found by a legal Trial that the Claned man who did the injury, was harboured amongst the Clan, after the Injury was committed; But though this seems as just as Letters of Reprysal are, yet it is now in Desuetude justly, for crimina suos tenent authores.  

ACTS 113, 114.  THese two Sumptuary Laws are in Desuetude; But in the Act 113, a case is observable, wherein even the King's Licence for Transporting wool is not to be respected, but is to be esteemed surreptitious.  

ACT 115.  THis Act seems strangely insert here, since Popery was abolished long before this Act.  

ACT 117.  VId. observe. on Act 77 Par. 6 Ja. 6.  
BY this Act all actions of Deforcement, and breaking of Arrestment, 
ACT 118.  are ordained to be summarily discussed by the Lords without delay, and therefore they might have been excepted from the order of the Roll set down in the late Act of Regulations, but yet they are not, for they must abide the Order of the Roll, as other actions, and all the privilege that they have quoad this, is that, they come in upon six days warning, and need not be continued, that is to say, they have but one Diet.  
It is fit to know that these Actions may be pursued Civil or Criminally, and the punishment is Confiscation of Movables, and an arbitrary punishment of their person.  
Observ. 1. That the Creditors injured by the breaking of the arrestment, are to be preferred to the Fisk, the Reasons whereof was, that it seemed unjust that a Creditor doing Diligence, for his own Debt should be disappointed by his own Diligence, as he would certainly be, if when he had pursued, and prevailed in his Action for breaking of Arrestment, that the party's Escheat falling by this Diligence, the King should be preferred to the User of the Diligence, and we see likewise in all such cases the party offended is still preferred to the Fisk; and thus where parties are at the Horn for a Civil Debt, the Donatar of the Escheat is still liable for the Debt: And in Theft by Act of Parliament, the party injured is preferred to the Fisk, but it seems strange, why by this Act the Gift of Escheat is declared null if it be not expressly burdened with the Creditors Debt. It might seem more convenient that the Gift should rather have been burdened with it, as in other cases.  
Observ. 2. Though by this Act it be declared that the Debt shall be paid out of the Offenders Movables, yet that does not hinder the party offended to do Diligence against the offenders real Estate, for what sums the Lords shall modify.  
Observ. 3. That Arrestments may be made, not only in the hands of these who owe any thing to the Debtor; But Arrestments may be even made in the Debtors own hands, which though it may seem strange, yet it is done to the effect, that if the Debtor shall be found to have alienated any of his Movables so arrested after the arrestment is laid on, he may be pursued for breaking of Arrestment, and punished conform to this Act.  
These Arrestments are used in the same sense, and are execute in the same way that we use them, and all this Subject is very well treated by Christin. Tit. 3. ad leges Mechlin. Argent Tit. des arrest. 8.  
BY the Civil Law prodigals (under which Name were comprehended all such as managed not well their affairs) got 
ACT 119▪  Curators only by a Judge; But with us they are Interdicted (and their Interdicters are their Curators) and that either judicially, or by consent, but though it may seem that if a man Interdict himself, he cannot Reduce that Interdiction, because he has consented; Nor yet should Obligations granted by him, be sustained, though he be thereafter found by the Lords to have been provident since the publication did put all in mala fide, to Contract with him; yet Papers granted by him will be sustained on that head, and even the Interdiction itself will be Reduced as contrary to natural liberty, the Granter being mentis compos & rei suae satis providus; And there having no precognition preceded, December 4. 1623. Gerhan contra Hay. February 1●. 1633. Forbes contra Forbes, which leaves the people in great uncertainty; and it seems much better that voluntar Interdictions were absolutely taken away; Though I believe voluntar Interdictions have been introduced amongst us for preservation of ancient Families (for they extend not to secure Movables, or against personal Execution) and it was found that many weak persons would consent to a voluntar restraint, who would not compear Judicially to be restrained; and the Letters of Publication passing upon a Bill by Deliverance of the Lords of Session, seems to be a kind of interposing of the Authority of a Judge, and so to make the voluntar Interdiction a Judicial Interdiction: But the Narrative of this Act confesses that Interdictions upon consent, are beyond the first design of the Law.  
It is observable, 1ᵒ. That Interdictions need not be Intimated to the party Interdicted, or execute against him, December 11. 1622. Seaton contra Elleis. Though Inhibitions must be execute against the person Inhibited; The reason of which difference is, because the person interdicted having consented, there needs no intimation be made to him.  
Obs. 2ᵒ. The Style in all such Letters, is ordinarily the rule of all Decisions upon them; and yet interdictions were found not to annul movable Bonds, though the Letters did discharge the granting such Bonds, and that because Interdictions do naturally strick only against alienation of heritage; Our Law thinking Movables of dat importance, or else because that would stop Commerce, and straiten too much the person Interdicted, July 11. 1634. Bruce contra Forbes. June 20. 1671. Cranford contra Hamilton. And though an inhibition did expressly discharge the granting of Renunciations; Yet a Renunciation of a Wodset was not Reduced, as granted after Inhibition, since the Wodset was prior, and so the Renunciation by the person Inhibited, depended upon a prior Obligation, July 16. 1667. Elleis contra Keith. But by a late Act of Sederunt, the 9 of February 1680. It is declared, that if the User of an Inhibition shall intimat to the person who has Right to the Reversion, that the Wodsetter or Annualrenter stands Inhibited at their instance, and shall produce the said Inhibition, duly Registrated at the time when he intimats, that then the Renunciation, or grant of Redemption, though proceeding upon true payment, shall not be sustained without Citing the Inhibiter.  
There were no formal Inhibitions in the Civil Law, but the Doctors speak of a prohibitio alienationis equivalent thereto, M●vius de Arrest. c. 9 num. 25. Arrestari possunt res mo●iles imm●bilium supervacan●um est arrestum cum loco moveri non possunt ejus tamen vice quoad illas obtinet prohibitio alienationis quae impetrari solet a judice quoties justus metus est ne alienando debitor deteriorem reddat petitoris causam essicitque ut non ●iat alienatio ipsius rei & num. 29. Judex ob aequitatem talem Inhibitionem decernere debet & num. 32. pro arresto habetur in immobilibus interdictio usus corum, so that Interdictions and Inhibitions are a resemblance, if not a species of Arrestments, and I think with Maevius, that the word comes from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 placitum incorruptum vel inviolatum, because by all these remedies the obtainers rights are preserved inviolable. Inhibitions have their Origine from the Canon Law, whereby if the Secular Judge did interpose in any thing that was Ecclesiastic, the Ecclesiastic Judge did Inhibit him to proceed: And Inhibitions are mentioned, cap. causam Ext. qui sil. sint legit. cap. tuam Ext. de ord. cognit. and with us they were first used in the matter of Teinds in the same sense; but now the word is extended to Letters, whereby the Judge inhibits debtors to sell in prejudice of Creditors.  
The publication of Interdictions comes not from the Canon Law, but from the French, where it is necessary that they be published in Paraeciâ & Mercatu, as with us, Vid. Argent. tit. des Mineurs, Art. 492. where he likewise determines, that if a third party knew of the Interdiction, either by being a Witness, or by a private Intimation made to himself, that any right made to him would be null; with us also the raising of an Inhibition upon a Bond of Interdiction was found equivalent to a publication; the design of the Letters of Publication being only to put the Liege's in malâ side, 10 November, 1676. Stewart contra Hay of Gourdie, where it was likewise found that the person Interdicted might after Interdiction sell his Land notwithstanding thereof to a third party, if the Bargain was profitable, and that without the consent of the Interdicters: but in that case the Bond of Interdiction was many years kept up, and the Inhibition thereupon was never execute till about the very time the communing begun for sale of the Interdicted persons Lands.  
Observ. 3. That albeit all Inhibitions and Interdictions are to be Registrated by this Act within 40 days; yet Inhibitions for Teinds need not to be Registrat, for an Inhibitions for Teinds is but in effect a Summons or Warrant discharging the Party to lead, but not discharging third Parties to buy, and so needs not be Registrated.  
Obs. 4. That though by this Act they are to be null if they be not Registrat in the Sheriff's Register, yet by 264 Act Par. 15 Ja. 6. It is sufficient to Registrat them in the Registers of Stewards, or Lords of Regality within which they dwell; and now they may be Registrat in the general Register at Edinburgh, which is not here mentioned, because it was not extant the time of this Act and Registration in the general Register at Edinburgh, is allowed by the 13 Act Par. 16. Ja, 6.  
Observ. 5. Whereas this Act appoints them to be Registrat within 40 days after the publication; it is doubted whether the day whereupon the Letters were execute, or Registrat, is to be numbered amongst the 40 days. But by the late Decisions it is found sufficient that either of these days be free.  
Nota, Inhibitions prescrive from the last Execution, but not from the date of the Registration, for Actions might have been intented upon them before Registration, 19 February, 1680. Lutesoot contra Glencorse.  

ACT 119.  THis Act appointing such as are absent from the Convention of Burrows to be fyn'd, and that upon their Acts the Lords of Session grant Letters of Horning, etc. is in observance, except in so far as these Letters are ordained to pass at the instance of the Burgh of Edinburgh, for by an unprinted Act of Parliament, 1607. Execution is allowed to pass at the instance of the Agent of the Burrows, and the Letters are now still raised in his name.  
This Act ordains the Burrows to be cited to their General Convention by a Missive Bill, but this is now done by a Missive Letter, in which the chief Articles on which they are to treat, are expressed, to the end they may consult on them with their Constituents, and these are called the Heads of the Missive, but this excludes them not from consulting on new Emergents, which could not have been foreseen.  

ACT 120.  THat part of this Act which discharges the conducting and fraughting any strangers to the Isles, under the pain of tinsel of Life, Lands, or Goods, is in Desuetude.  

ACT 121.  BY this Act Lords of Regality, and Magistrates of Burrows are appointed to set prices upon all Stuffs, but that part of the Act appointing such Magistrates and Judges as are negligent herein to be punished at Justice Airs, or Courts, is not now observed; and yet that would not defend such as might be panneled upon this account; for the negligence of Judges should not defend them, seeing that would invite them to be negligent:  

ACT 123.  THis Act appointing the shooters with Guns to be punished, is not in Desuetude, but is seldom put in execution; and it was thought that Fowlers had prescrived an exemption against it, shooting being their Trade, and their design is not liable to these suspicions for which the carrying Guns is discharged by this Act, but yet since by a Proclamation 9 June, 1682. Fowlers are discharged to use Guns, and Setting Dogs, it seems this favourable construction ceases, and the bearing such prohibited Weapons is still sustained as the aggravation of other Crimes, but is not so sustained as that it takes off the strength of a defence that would be otherwise relevant; and thus Nicolson being Panneled for Murder, 24 June, 1673. alleged that whilst he was struggling his Gun went off, without any accession of his, which defence of his was sustained, though it was replied, that carrying of Guns was unlawful in a person of his quality, and so versabatur in illicito & exillicito nunquam exculpatio.  
THough this Act prohibits the carrying Nolt and Sheep out of the Country, yet it is now allowed, 
ACT 124.  and they pay Custom to his Majesty, for though before the Country was fully laboured and plenished with these, it was fit to keep them in the Country. yet now the Country would be too much burdened with them if they were not exported.  
BY this Act whosoever renders the King's Castles for Money, 
ACT 125.  are made liable to repetition, and it is declared that their Heirs shall be liable, which last is the speciality for which this Act was necessary, since the persons who received the Money were thereby liable to restore, and yet before this Act Heirs were not liable by our Law, since the Crime was extinguished by Death, and thus in Crimine repetundarum repetitio ad Haeredes extendit, l. 2. ff. h. t. na● turpe lucrum ab Haeredibus extorqueri debet licet crimina morte extinguantur, l. 5. ff. de Calum.  
THat mixing of Wines is justly by this Act made Criminal, 
ACT 126.  and declared a point of Dittay, and this is by Carpzov, Tit. Fals. and other Lawyers declared to be a species of Falsehood, and to be punishable as such.   

King James the sixth, Parliament 8.  
BY this Act as by all the Acts of this Parliament, King James endeavoured to curb the insolence of such Ministers as being dissatisfied with Episcopacy, 
ACT 129.  became very seditious and turbulent; for at this time Spotswood's History tells us, that there being a Convention of Estates holden by King James, the Ministers of Edinburgh, and others desired that nothing might pass concerning the Church, till they were heard; and Mr. Pont, protested against the Proclamation of these Acts, and by this Act such as decline the King's Council, and refuse to be judged by them in any matter whatsoever, of whatever degree or Function they be, are declared guilty of Treason. This Act was occasioned by their frequent declining of the Council, upon pretext that the Council were not Judges competent in prima instantia, to what was preached by Ministers, and particularly by Mr. Andrew Meldrums Declinator; and upon this Act Mr. James Gutherie was Convict of Treason, for declining the King and his Council at Stirling in anno 1651. and was execute therefore in anno 1662.  
This Opinion the Presbyterians did borrow from the Romish Church, who make Ecclesiastic persons only Judges in the first instance, to what is spoke or written by Churchmen, and after they have found them guilty, than they deliver them over brachio seculari; For understanding these Exemptions that are claimed by Churchmen from the Civil Jurisdiction of Laics; it is fit to know that the King, Deut. chap. 17. vers. 18. is commanded to write the Law, and that David, Solomon, Joash and others did Reform the Priests and others serving at the Altar, and judged their misdemeanours, in imitation of whom Constantin the Great; Theodosiu, and the first Christian Emperors did regulat the Clergy, and judge Crimes till Arcudius and Honorius, did by an express Law, ordain quoties de religione agitur Episcopos judicare, caeteras vero causas qua ad ordinarios cognitores vel ad usum publici juris pertinent legibus oporlet audiri, which were just marches betwixt the Secular and Civil powers: But Justinian at the instance of Menna, Patriarch of Constantinople, did in the thirteenth year of his Reign, by his 123. Novel. ordain that Churchmen should be only conveenable in Civil Cases before their Bishops; and as to Criminal Cases, that they should be only conveenable before their Bishops in Ecclesiastic Crimes, Civil Crimes being cognosced by the Judge as formerly.  
From these beginnings did arise the vast pretensions of Churchmen, whereby they endeavoured to decline the Civil Judge in all Cases, as well Civil as Criminal, in the first Instance, and to that height that Panor in. c. novit. 13. Decret. Greg. de Judiciis & in c. causam 4. Decret. Greg. qui filii sint legit, asserts that both the Jurisdictions Spiritual and Temporal belongs to the Pope, which was first checked by Peter Cogniers, the Learned Advocate of Philip 4. King of France 1329. It is Declared by the 114. Act 12 Par. Ja. 6. That this Act shall not prejudge the Spiritual Office-bearers, as to the power of Excommunication, Collation, or other essential Church-Censures.  

ACT 130.  THis Act declaring that such as shall impugn the Authority of the three Estates, or shall seek or procure the Innovations or Diminution of their Power or Authority, to be Treason, was occasioned by such as endeavoured at that time to exclude Bishops from the Parliament, of which they were, and are the third Estate, and it is observable, both by the Narrative and Statutory part of this Act, that the designing to exclude one of the three Estates, was the chief design of the Act, though such as impugn the power of the Parliament in general, so far as relates to Cases Spiritual, do likewise commit Treason; and as in the former Act, the controverting of the power of the Council, is declared Treason; so in this Act, the controverting the power of the Parliament, is much more Treasonable; and yet it is controverted, whether the denying any Branch of the Parliaments power be Treasonable, such as is the quarrelling the Power or Constitution of the Articles; or whether the Subjects may appeal from the Session to the Parliament? Or if the Parliament has power to Reduce their Sentences passed in foro? In all which, the Parliaments Authority may be alleged not to be controverted; but the question seems to reach only to the controverting, its fundamental powers, and if such Cases as these were Treasonable, the people might be discouraged to inquire even into what were otherways lawful; and whatever may be said against such Debaits, when they are merely factious, and officiously moved, and prosecuted by such as have no interest; yet such Debates in Parliament may be alleged not Treasonable by the 40 Act 11 Par. Ja. 6. and the votes of Parliament are likewise by this Act declared to be free Votes. As to all which, I shall only say that these and such cases, are to be detertermined by the respective Circumstances; and therefore it is still safer, not to approach too near those Rocks, on which we may splite.  
THis Act declares the Convocating all Councils, Conventions or Assemblies, Civil or Ecclesiastic, 
ACT 131.  to be punishable by the pains enacted against such as Convocat the King's Liege's, and it was occasioned by the unlawful Church-assemblies, holden at that time in opposition to Episcopacy, and by the 4 Act Par. 1 Ch. 2. This Act is Ratified, and all such Convocations declared punishable, though it be pretended by such as hold them, that they design nothing but the good of King and Kingdom; which Declaration was there made to condemn the false pretences of our late Rebellion.  
IT is observable from this Act, that the being once or twice drunk, 
ACT 132.  is not a sufficient reason for deprivation of a Minister▪ for the Act requires common Drunkenness, and deprives ebriosum sed non ebrium.  
Observ. 2ᵒ. That though this Act say, That none residence for the space of four Sabbaths, without the allowance of the Ordinary shall be cause of Deprivation; Yet though there be no express allowance, the None-residence will be no reason of Deprivation, if the reason was sufficient, and the Ordinary could not be had, as the Common Law decides in this case.  
None-residence is a Cause of Deprivation by the Canon Law, Decret. Greg. de Praeb. cap. 17. and Franciscus Forrensis has writ a Learned Treatise, proving the necessity of Residence to be juris divini.  
The Civil Law had formerly required Residence from Churchmen, Nou. 6. cap. 2. & 123. cap. 9 except where they had liberty from the Emperor, and thus with us the King only may dispense with None-residence.  
Observ. 3o. That plurality of Benefices having Cure, is a sufficient Reason of Deprivation, which is consonant to cap. adhaec. 13. the Praebend; But exception is made, where one is not able to entertain the Incumbent, vid. Alphons. Hoieda de compatibilitate beneficiorum. The Pope might dispense, so now may the King.  
Observ. 4ᵒ. That by this Act Commissioners to be appointed by the King, are to have power of depriving Ministers, which is abrogated by the first Act 12 Par. Ja. 6.  

ACT 133.  THough this Act declares that Ministers who exerce, or officiat as Notars, shall be deprived, yet it does not expressly annul the Writ; and therefore a Contract of Marriage Subscrived by a Minister in place of a Notar, was the 12 of July 1631. Hassington con, Bartilme Sustained, though it was found that the Ministers was thereby deprivable.  
This Act discharging Ministers to be Judges, was made to exclude Mr. Pont, who was then Lord of the Session: for after the Reformation, Ministers came in place of the Ecclesiastic Lords, and though they pretend now that Bishops should not sit in Civil Judicatures, yet they desired to be there.  

ACT 134.  BY this Act the uttering of slanderous and un-true Speeches, to the contempt of His Majesty, His Councils Proceedings, and Progenitors, is declared punishable, as Leasing-making; and Leasing-making is punished with tinsel of Life and Goods, by the 43 Act Par. 2 Ja. 1. Vid. Act 83 Par. 6 Ja. 5. Vid. etiam tit. Cod. si quis imperatori maledixerit: For such slanderous Speeches, the party is sometimes only Banished or Scourged, as Tweedie was, March 13. 1612. But one Fleeming was hanged for saying that he wished the King would shoot to dead, May 15. 1615. Spo●eswood Relates that this Act was occasioned by Pamphlets and Preachings after Gourie's Execution.  
Observ. 2ᵒ. That all the Subjects are Discharged to meddle in His Highness' Affairs, or in the Affairs of His Estate, that is to say, to make inquiry curiously into what His Majesty, or His Council does, for that is presumed to be done malo animo: And in all ages such curiosity has been punished. Thus Augustus killed Panarus vel●ti curiosum Sueton. cap. 27. and Plut. l. de curios. Observes that the Locrenses fined such curious persons, Vid. Langl. l. 8 Semestr. c. 11. who Treats on these Crimes Learnedly.  
BY this Act, no Sentence of Forfalture for Treason, 
ACT 135▪  committed against the King and his Estate, can be quarrelled upon Nullity of Process, till the Crime for which the Forefalture was led be pardoned.  
Observ. 1. That since this Act speaks only of Crimes committed against the King and His Estate, it has been doubted, whether this Act can be extended to Treason, merely committed against the King's Person; for by the King's Estate is ordinarily meant His Prerogative and Majesty.  
Observ. 2. That that part of the Act which Discharges Advocats to plead, or consult for any person, who stands forefalted, is abrogated, Act 38, and Act 39 Par. 11 Ja. 6. But yet none use to plead for forefalted persons, till they get a Licence from the Judge before whom the Trial is to be.  
There was a Commission granted to consider what nullities could be objected against Swintons' Forfalture, and it was alleged that the Decreet was null by intrinsic nullities, in substantial points, and so the Commissioners might proceed, since this Act was only to be interpreted of Formalities, and alleged nullities, which could not be instantly proved, or did not appear by the Decreet itself, yet they would not proceed, because the forefalture was not, nor could be purged, and the Crime was notour.  
THis Act declaring all Remissions for Slaughter, Fire raising, 
ACT 136.  and other odious Crimes to be null, is suitable to Stat. Dau. 2. cap. 50. and Act 7. Par. 3. Ja. 5. But this Act is thought Temporary, as is likewise Act 63 Par. 6 Ja. 4. and notwithstanding of these Acts, His Majesty's Remissions for such Crimes has been oft sustained, vid. crim. pract. Tit. Remissions.  
THis Act is in Desuetude, for His Majesty's Guards are paid out of the Excise; 
ACT 137.  and I find this Act formerly established by an Act of Council.  
THis Act is fully Explained, crim. tit. Murder. 
ACT 138.   
BY this Act Decreets of the Lords of Session are discharged to be Suspended without Consignation, but this being in Desuetude, 
ACT 139.  it is by the Regulations, Article 19 appointed, that Decreets in foro shall not be Suspended without Consignation, or by the whole Lords in time of Session, or by three Lords in time of Vacance.  
It may be doubted what this Act means, in appointing Letters of poinding, as well as Horning to pass, not only for liquid Sums, but where the execution consists in facto, since poinding can only be for a liquid Sum. To which it may be answered, that the meaning of the words are, that poinding may be allowed, though the Obligation was not originally for a liquid Sum, but ad factum praestandum; but it is necessary in that case, that the effect should be thereafter liquidat by a Sentence, else there could be no commensuration, and so no poinding; and yet I cannot deny but the Clause is ill expressed.  

ACT 140.  THis Act appointing that the Defender shall find Caution to enter the Justice-Court, but in sober manner, is now in Desuetude, there being no such Clause either in the Letters, or any such Caution found, but though the Justices allows some Friends to enter the Panel with the Defender, yet these must be very few, and disarmed.  

ACT 141.  THis Act appointing that Salmond, Herring, and White Fish shall be only sold at the Staple here related is in Desuetude, and though the Town of Aberdene has their own Gadges of Salmond conform to this Act, yet the Town of Edinburgh pretend a right to be the sole Gadgers of Salmond in all Scotland, by virtue of a Gift from King Charles the First, which Gift the Town of Aberdene have suspended upon this Act; and this Act in so far as it appoints Herring and White Fish to be brought to Leith, and Crail, is expressly abrogated by the 14 Act, Par. 10 Ja. 6.  

ACT 142.  THis Act is explained in the Observations upon the 75 Act, 6 Par. Ja. 6.   

King JAMES the sixth, Parliament 9  

ACT 1.  THis Act was introduced to correct an ill custom which had crept in at the Reformation, whereby the Popish Prelate finding that they were to be put out, did demit their Benefices in favours of these with whom they entered in a compact, and by virtue of which compact they reserved to themselves their own Liferents; Likeas, according to the C●●on Law, Si quis resignaverit beneficium retentis sibi fructibus pro per si ne non valet resignatio nam decet quod ipse qui Altari servit de Altari; vivat, cap. cum secundum 16 the prab. And in reason it must be concluded that the Benefices must be ill served when these who resign reserve their own Liferent, for he who serves will have nothing in that case, and he who serves not aught to have nothing: Therefore by this Act all such compacts are declared null, and it is declared, that for the future all Rights to be made to Prelacies shall be null, except the places be vacant by decease, forfalture, or simple dimission of him who possessed the same formerly; nor doth the King now accept of any dimission or resignation in favours of any other party, for that is a real invasion upon His Royal Power, by which he dispones upon all Offices according to his free will.  

ACT 2▪  WHen persons are forfeited, they or their Children use to abstract the Evidents of their Land, and therefore by the first part of this Act, it is declared that the King or his Donatar shall have right to all Lands, etc. peaceably possessed by the forefeited person, for the space of 5 years preceding the forfeiture.  
Observ. 1. That this privilege holds only in cases of Treason, but not where his Majesty comes to have right by any other Title, and it may be debated if this should hold where the forfeiture proceeds upon all the Laws whereby any Crime is ordained to be punished as Treason, but it is not declared to be Treason, such as Theft in Landed Men, etc. for it would appear that this privilege was only granted where the Crime is declared to be Treason; but yet since these Crimes are punished as Treason, this Act should extend even to these, for the presumptions inductive of this Act, viz▪ that they will abstract their Evidents, holds even in this case, and it cannot be denied but these persons are forfeited as Traitors.  
Observ. 2. That this right introduced in favours of the King, seem to be only presumptive, so that if any Party should show a Back-band from the forfeited person who was 5 years in possession, the person to whom the same was granted, or any who could instruct a better right, might pretend to exclude the Donatar, even as a Churchman who was decennalis & triennalis possessor, might be excluded upon a better right, or by proving that the Churchman possessed only by a tolerance, but yet this presumption may be answered to be juris & de jure, and so to exclude all better rights, & sibi imputent, who having such rights, suffered the forfeited person for 5 years to possess without any interruption, and if such competitions were allowed, the King's right might be eluded by an hundred contrivances; and though this Act may seem to be useless now, since the Registration of Writs, which hinders Writs to be abstracted, yet that was repelled 23 and last of July, 1666. Earl of Southesk against the Marquis of Huntley; but by the 4 Act, Par. 18. Ja. 6. It is declared that Extracts of Rights, either disponed or confirmed by his Majesty shall be valid, though the principles cannot be produced, and yet if King and Parliament pleased, this Act might suffer some correction, because his Majesty is much better secured now by Registrations than he was at the making of this Act.  
Observ. 3. That since this Act appoints this quinquennial possession to be proven only by the Retour of an Inquest, it was therefore well found that it could not be proven by exception, 13 June, 1666. Home contra Tenants of Kello and Home. Yet though there be not a Retour already made, the Lords will superseded extracting that betwixt and such a time the quinquennial possession may be retoured, as was found in that case.  
Observ. 4. That the possession condescended on in the Act is where the forfeited persons were 5 years in possession by labouring the same with their own Goods, setting the same to Tenants, or uplifting the Mails and Duties, so that it would seem that these kinds of possessions are requisite in this case, and that the Act of Parliament hath required them, because they are palpable; and therefore civil possession per constitutum, by reservation, receiving of Annualrent from Principal or Cautioners, not relative to the Infeftment of Annualrent, but to the Bond or otherways seen not sufficient by the words of this Act,  
Observ. 5. That since this Act is founded upon uninterrupted possession of the forfeited person, that therefore where there are interruptions; this holds not, and thus it was found that the raising of an Inhibition was a sufficient interruption, 23 July, 1666. Earl of Southesk con, Morquess of Huntly.  
By the second part of this Act it is appointed that where the forfeited person was in possession of Lands, Tacks, or Teinds, etc. the time of the forfeiture, albeit he had not been in possession 5 years preceding the Process or Sentence of the Forfaulter, yet the Assize must retour what the Rebel did possess the very time of the Process or Sentence, and the King or his Donatar, is to be entered thereto summarily, and cannot be removed for the space of 5 years, that in the mean time he may search and seek after the Rebel's Rights, for he cannot be presumed to know quo jure the Rebel possessed; and albeit it may seem both by reason and by this Act, that this should only hold where ●acks or previous possession, though somewhat shorter than 5 years, by virtue of a right, could be proven, yet the Lords found that this part of the Act holds even where no right could be shown, if the forfaulted person was in possession, though for never so short a time; and it being alleged that these 5 years in this last part of the Act should be counted from the time of the forfaulter, and not from the time that the Donatar enters to possession, for else he might by lying out prejudge the Creditors. The Lords found that if the Rents were extant, he had right thereto from the date of the forfeiture, though prior to his possession, 24 January, 1667. Home contra the Tenants of Kello: But that case being a competition betwixt the Donatar and an Appryzer from the Rebel, the Lords found the Donatar might summarily redeem the Appryzer, and enter in possession, ibidem.  

ACT 3.  THe reason upon which this Act is founded, is, that when any person raises a multiple poinding, the party who is troubled by many who pretend Right, aught to be secured when he pays to that person who prevails nam res judicata pro veritate habetur, and he pays authore praetore, and though Minors have by the Civil Law and ours, a double remedy, if their Tutors and Curators suffer a Decreet to pass against them for not compearance, viz. That he may either reduce the Sentence, or pursue the Curators for damnage and interest, in suffering the Decreet for no compearance to go against them; yet in this Act it is declared, that if a Major who compeats with a Minor in a multiple poinding, be preferred to the minor, because of the Minors not compearance in that case, the minor has only action against his Tutors and Curators, but cannot Reduce the Decreet of preference, but if the Minor have no Curators, it is declared he shall be restored as accords of the Law, that is to say, he may reduce the Decreet, since in this case he has no other remedy, but if the Decreet of preference be quarrellable for any error in the execution, or if the party absent can show a necessary reason for his absence, than the Decreet is quarrellable, either by Majors or Minors; yet the Lords found that payment bona fide, conform to this Act, does secure the Payer, not only against the principal Competers, but against their Assigneys, November 24. 1676 Weir contra the Earl of Callender; but it has been debated whether the party who has been prejudged by the Decreet of multiple poinding, may be Reponed against the same, by way of Suspension; or if a Reduction be necessary, and it has been found, February 1 1670. Watson contra Sympson, that a Decreet of multiple poinding, obtained against the party, could not be taken away without Reduction at the party's Instance; nor was a Suspension at the Tenants' Instance sufficient, because the Narrative of this Act bears expressly That the parties used to crave to be reponed, by intenting Reduction; and that the party who obtains the Decreet, is by the Statutory part only obliged to answer in the second Instance, which the Lords found to be by way of Reduction; and from that Decision it is very clear, that these words, The second Instance in all Statutes, are only Interpret by the Lords, to be meant of Reduction, and not of Suspension.  
Observ. 1ᵒ. That the party absent will not be prejudged, if he have a necessary cause of his absence; for it were unjust to punish a man for what was not in his power; and yet by this Reservation, he who gets payment is still unsecure; but he who pays by virtue of the Decreet before Reduction be intented, can never be called in question.  
Observ. 2ᵒ. That the party preferred in the multiple poinding, is only thereby secure, as to the bygone profits which are paid, and so in effect facit tantum fructus consumptos suos; and if the sums be extant, unpaid to the party so preferred, he who had the best Right before the Decreet of multiple poinding, will still be preferred; and it seems by the words of the Act, that if the profits themselves be extant, the best Right will be preferred; for the words are, Nor yet shall have any Right to the bygone profits intrometted with.  
This is by the 19 Act Par. 10 Ja. 6. Declared only to be extended to such actions of multiple poinding, as were intented after this Act was made.  
THe first part of this Act dispensing with the not Sealing of such Papers as are to be Registrat, 
ACT 4.  is explained in the 117 Act Par. 7 Ja. 5. and whereas this Act declares, that a Seasine is sufficient, if Subscriv'd before one Notar, and a reasonable number of Witnesses, that reasonable number is understood to be two, though by a vulgar error it is believed, that a Seasine requires four Witnesses; and now by constant custom, four Witnesses are always adhibit in Seasines, and by the 5 Act 3 Par. Ch. 2. their Subscriptions are necessary.  

ACT 7.  BY this Act it is appointed, that all Kirk-lands set in Feu-ferm should be confirmed by the King, else they are null by way of exception.  
Observ. 1ᵒ. That though the Narrative of this Act bears, That all Feus' and long Tacks set since the Year 1558. should have been Confirmed; yet the body of the Act does not declare, that long Tacks need to be Confirmed; Vid. manticam de ambig. convent. lib. 5. Tit. 10. And Balfour relates Decisions bearing, That Tacks for three nineteen years are esteemed as alienations, and so should be Confirmed.  
Observ. 2ᵒ. This Act Declares, that of old all Kirk-lands should have been Confirmed by King or Pope; Yet the 187 Act Par. 13 Ja. 6. seems to insinuat, that neither Confirmation of Pope or King was necessary, but that the King's consent was sufficient; and that therefore the Act does Statute, That no right can be quarrelled for want of Confirmation, where the King has consented under the Privy Seal; but that the King's Confirmation was necessary of old, is clear, R. M. lib. 2. c. 23. and the reason there given is, quia corum terrae sunt de eleemosyna Domini Regis, and being presumed to have been given by the Kings, for praying for them, they should not be appropriate to another use, without their consent.  
Observ. 3o. That only Feus' of Kirk-lands are ordained to be Confirmed; and therefore the Lords inclined to think that Feus' of Salmond Fishings set by Churchmen, were not null, though not Confirmed, and January 20. 1666. Rentoun contra Fevers of Coldinghame. The Lords found that Gifts of an Office of Forrestry, granted by Kirkmen, needed not be Confirmed, these not being properly Feus' of Kirk-lands, ibid.  
THis Act Appoints that all Money and Victual assigned to the Captains of the King's Castles, 
ACT 8.  and whereof they have been in possession for five years, shall remain with them unquestionably, and this is like the Quinquennial Possession given to the King in cases of Forefalture.  
Nota, That the King has a Duty paid to him in Exchequer, called The Castle Wards, so called, because they are paid in forwarding or keeping His Castles, and he has no Right to them, but constant payment, conform to the Exchequer Rolls; and therefore yearly the Sheriffs are charged with them, and they get Letters of Relief, and it was found in a case betwixt the Sheriff of Haddingtoun and Sir John Nisbet, January 11. 1678. That the said Sir John had not prescriv'd an exemption as to these Castle Wards, neither against the King, nor Sheriff, though he had paid none for forty years, since there were Letters of Relief yearly granted. 2ᵒ. It was alleged, that his Lands of Dirletoun having come once in the King's hands, by Forefalture, and His Majesty having of new given them out, that Servitude was thereby extinguished since res sua nemini servit, but was repelled; because the King did of new only Dispone the said Lands, as when they fall in his hands by the Forefalture.   

King JAMES sixth, Parliament 10.  
MR. Nicol Dalgleish, 
ACT 10.  and some other Presbyterian Ministers, having reproached the King and His Government, this Act declaring slanderous Speeches and Writs, punishable by Death, as Sedition was made, and is more fully explained in the Act 134 Par. 8 Ja. 6. and in my crim. pract. tit. Injuries.  
Observ. 1o. Sedition is a Name that receives different punishments, according to its different Degrees of guilt; and therefore where it is destructive of the King's Authority immediately and designedly, it is punishable by Death, as here, though l. 3. C. de seditiosis; the punishment of these, qui ejusmodi voces emiserunt, is more moderate; and as that Law well observes words spoke in civitatibus & tumultuosis clamoribus, are more punishable than the same expressions would be, if spoken in private places, or without tumult; but yet by this Act, such seditious Speeches, whether spoken privately, or publicly, are punishable by Death.  
Observ. 2 o That when His Majesty's Advocate designs not to pursue the Authors of such Speeches to the Death, he Libels only that the Panel did speak or write what tends to Reproach or Slander His Majesty's Person, or to misconstruct his Proceedings, but not that they actually did so, and in that case the guilt infers only an arbitrary punishment according to the circumstances that attend the same.  
Observ. 3o. That though by this Act the Depraving His Majesty's Laws and Acts of Parliament, is declared punishable by Death as Sedition; yet all misconstructing Acts of Parliament, is not so punishable; and thus, though a Sheriff or other Judge would misinterpret a Law, so as to make it infer a higher mulct or penalty than the Law designed, that could not infer Sedition or Death, though it be likewise punishable; but the design of this Act is, to declare the depraving and misconstructing of Laws, so as thereby to reproach the King or Government to be Sedition, and Spotswood tells us, pag. 243. That this Act was made for punishing these Ministers who had declaimed against the Acts of the former immediate Parliament, as destructive to their Discipline. Upon this Act the Lord Balmerino was found guilty in December 1634. for having dispersed a Petition that reflected upon the Government; in which Process, it being fully Debated that dolus malus should be found in such cases, where the design of defaming makes only the Crime; this was repelled, because where the words may of their own nature, move dislike of, and Sedition against the Government, the design needs not be proved; for if the people be irritate, the Author ought to be punished, and this Law considers the effect, and not the design, and he ought to blame himself, who meddles in matters of Government without his Sphere.  
It was likewise alleged in this Process, that a Petition to the King Himself, could not be interpret a misconstructing; but this was also repelled, because both by the Common Law and ours, it has been found, that great affronts have been put upon the Government, by way of Supplication. Upon this Act also, Francis Tennent was found guilty in anno 1680. and Mr. Thomas Ross, in anno 1618. and the Earl of Argile, both in the Year 1662. and 1681.  
Observ. 4ᵒ. That in this Act mention is made of raising dislike betwixt His Highness, His Nobility and loving Subjects; which word Nobility was expressly put in by the Lord Hamilton and other Noblemen, who then turned out Captain James Stevart, against whom this Act was partly designed, whereas in the Act 134 Par. 8 Ja. 6. made the year before, by the said Captain James' influence, against slanderers, there is no mention made of the Nobility, as is observed by Mr. Robert Macgil, in Balmerino's Process.  

ACT 11.  THis Act discharging all Dilapidations of Benefices, runs only in the words of the Act, against such as dilapidat Benefices, that are at His Majesty's presentation; but yet the praxi, no Benefices that are even at the presentation of Laic Patrons, or Ecclesiastic Subjects can be dilapidated.  
Dilapidations of Benefices were formerly discharged by the 101 Act Par. 7 Ja. 6. but to elude that Act, Beneficed persons used not to give down any of the Bolls payable to the Benefice, but to convert these Bolls in Money, and to make these who were liable in payment, only liable in very small prices, and therefore such Conversions are discharged by this Act; But it may be alleged, that where the Conversion is for less than the present price, as Victual now gives, it is unlawful since that Conversion was unnecessary, and the Beneficed person is prejudged, because if no such Conversion had been made, he had got the Bolls presently, which could have maintained him better than the small prices, which these Bolls were worth the time of the Conversion; and yet by our Decisions, the price that the Bolls gave the time of the Conversion, are only considered, because both parties took their hazard, and the price mentioned in the Conversion, is presumed to be the full price, except it could be proven that the Victual gave then greater prices for in antiquis, there can be no other probation, Vid. observe. upon the said 101 Act 7 Par. Ja. 6.  
BY this Act all Leagues and Bonds made amongst His Majesty's Subjects, without his consent, are discharged. 
ACT 12.   
Observ. 1ᵒ. That though the Rubric bears, that all such Bonds and Leagues are null; yet they are not expressly annulled in the body of this Act, but they are expressly annulled by the 4 Act Sess. 1 Par. 1 Ch. 2.  
Observ. 2so. That the punishment is not here expressed, but in general, under the pain of being holden as movers of Sedition, and punished with all rigour; nor is it more special in the foresaid 4 Act Ch. 2. which I admire; but yet I think that such Bonds and Leagues are punishable by Death from the Words, all rigour, which may be very well extended to Death, especially in subjecto capaci, as Sedition is, for certainly some Seditions may be punished with Death, as we see in the first Act of this Parliament, and by this same Act, such Leagues are declared to be against all Law and Allegiance. Likeas by the 7 Act Par. 1 Ch. 2. The Subjects are discharged to take or renew the Covenant, which is a Bond or League, upon their highest peril, and I wish the Act had determined what was the highest peril, for generally Lawyers do not extend such Statutes to Death.  
I find that the Nobility and others having entered into Bonds amongst themselves, whereupon His Majesty was surprised at Ruthven, there are several Acts of Council, and particularly a Proclamation, issued out in April 1582. discharging all such Bonds so entered into, and that none enter into such Bonds for the future, and that gave occasion to this Act, which says, that these Bonds have given occasion to a great part of the Troubles that have occurred since; The Certification in that Proclamation, is under the pain of being repute favourers and partakers with the Conspirators against His Highness' Majesty. The Act here related to is the 43 Act 6 Par. Queen Mary, but that Act properly extends only to Bonds of Man-rent, but not to Bonds of Combination, as this does, so that this Act should rather have been founded on the 30 Act 2 Par. Ja. 1.  
There is in that Proclamation, and this Act, exception made of Bonds entered into with the King's consent, which was added, because the Nobility and Estates at the King's desire, entered in a League and Bond for preservation of Religion, which is Registrat in the Council Book, June 8 1585. But this Bond is subscribed by very few of every Estate.  
BY this Act Charges super inquirendis are discharged, 
ACT 13.  but it is a mistake to think that by that Act, the King or other Judges cannot examine men without a formal Process, for the design of that Act is only to discharge the denuncing men Rebels upon such Charges without previous trial, and yet if the Chief Officers of State, or at least four of them concur, it would seem that by that Act, even such Charges are yet lawful, and where the King or Magistrate has previous informations of Crimes latent, it were against the interest of the Commonwealth, that they should not be allowed to clear these by particular Interrogators.  
It was urged from this part of the Act, that no man could legally be Imprisoned, even by a warrant under the Kings own hand, and that this was very just in itself, since as Liberty is very precious, and the best part of Property, it was sit to secure it so, as that none could take it away, but these who will be answerable, and the King could not in Law be made answerable; and therefore it was justly by this Act appointed, that no man could be imprisoned by any Letter, even under the Kings own hand, except it were subscrived by the Officers of State, who should be answerable; to which it was answered by His Majesty's Advocate, that this Act did not debar the King from granting such private warrants under his own hand, for there might be some cases which he could impart to none of his Officers of State, as for instance, if all his Officers were upon a plot against him, or if the Crime were the being upon a Plot with a foreign State, which the King were not yet in a condition to resent, though he might justly apprehend his Subjects who were in accession to it; but the design of this part of the Act was only to discharge the passing ordinary Letters in common course under the Signet, except in this Method, and it might be much rather retorted, that since only Letters under the Signet, are discharged to be passed, except in this method; therefore private warrants from the King himself, are not discharged, for if the King and Parliament had designed any such thing, they would have expressly discharged all warrants under the King's hand, which is not done in this Act, and it is clear by the 184 Act 13 Par. Ja. 6. That the King may give Warrants out of his own mouth, to apprehend Rebels, or others whom Magistrates are obliged to apprehend.  
I find also that this Act was passed formerly in the Privy Council the 23 of June, this year, 1585. and there the Act bears, To have been made to prevent the obtaining of unformal Letters at the importunity and malice of private persons, which clearly evinces that it was not designed to preclude the King from securing such persons who he had reason to believe were obnoxious to the Government.  
It is observed in the Acts of Sederunt, that the King 8 June, 1581. by his Letter ordained several Advocats to be imprisoned indicta causa.  
By the second part of this Act Writers to the Signet are ordained to keep the old Style unalter'd, for Arguments brought from Style are a great part of our Fundamental Law, and in all our Decisions Argumentum a Stylo is still very strong, as from the wills of Inhibitions, Interdictions, from the Forms of the Chancery, etc. and yet in some cases this Argument is not concluding, and thus Gifts of single Escheat bear all Movables present and to come, and ye● they give only right to what Movables the Rebels have or shall possess within a year after rebellion; and though by the Style of Gifts of Wards the relief is discharged, yet that discharge will not be valid. As also, the Style of Inhibitions and Interdictions bears a prohibition to alienat either heritage or Movables, and yet it extendeth only to heritage.  
Stilus Curiae is by Justinian called forma & observantia, whence comes our word, Form of Process; Stilus & consuetudo fori vel judicii pro lege observari d●bet, l. 1. §. in honorar. de var. & extraord. cog. vid. Viet. de Stat. Sect. 3. c. 3.  
Observ. That though by this Act every Writer should write his name upon the back of the Signature which he writes, which doubtless was introduced, to the end that every Writer might be answerable for his errors in Style or otherwise; yet if at the passing of the Signature in Exchequer, the Writer subscribes his name, the Signature will be sustained, which was found necessary, though it was alleged that this Act was in Desuetude, as to this point, for it was found not to be in Desuetude.  
THis Act explains the 141 Act, 8 Par. Ja. 6. and dispenses with a part of it, and that is the Act to which this Act relates, 
ACT 14.  though it be not expressly cited.  
THis Act appointing Licences to be null, 
ACT 15.  except they be subscrived by the controller, is so far innovated, that they must now be subscrived by the Thesaurer and Thesaurer-Depute, who are come in place of the controller.  
BY this Act, Sheriffs, Stewards, Magistrates of burgh's, and others, 
ACT 16.  are ordained to apprehend notorious Thiefs, and if they refuse they may be pursued Criminally, as partakers of their guilt▪ or Civilly for the payment of their Debt, and generally all these are liable if they refuse to apprehend any Rebel for Civil Debts: But it may be doubted, 1. If any Judge be obliged to apprehend a man at the desire of any person who cannot instruct the person whom he takes to be a Rebel, by producing Letters of Caption, as he must do in Civil cas●s, and what makes a Thief a notorious Thief to this effect, 2. If mere negligence in not apprehending these notorious Thiefs be sufficient to found a Criminal pursuit against the refuser, as partaker, nor have I seen this sustained; but if any person shall contribute actively to a thief's escape, he is punishable as Art and Part, but with a lesser punishment, vid. Clar. Quaest 9 num. 7. & Bart· ad l. furti, ff. de furto ait spem datam ad evadendum dici auxilium ad committendum.  
Nota, By this Act all who are present and able to apprehend, are obliged to assist in taking Thiefs, or if they refuse they are to be repute partakers with them; and though they may be punished with some small Mulct, yet the certification here set down is in Desuetude as to them, vid. tit. Duels Crim. Observ. num 8. Idem est facere, & non prohibere cum possis; and as the Law presumes, every man guilty who will not concur to punish what all men hate so much, and that they would concur if they favoured not the guilt; so this assistance is so profitable for the Commonwealth, that such as deny it are Criminal, but that which is considerable in this Act is, that if any Clanned man rob any peaceable Subject, and if the Sheriff, or Steward, etc. refuse to assist him, not only is the Sheriff, etc. liable; but further, it is declared lawful to them who have their goods stolen and rest to apprehend and intromet with the Goods of the Offender, or any other of the said Clann, and retain them till count and reckoning; and though it would seem that this taking or retaining by private authority, is not allowable till the Sheriff be required to give satisfaction, and refuse; yet in the case Moor contra Mefadrick, 29 Novemb. 1678. It was found that these were separate Clauses, and that a person pursued for a Spuilyie, might propone relevantly that the Pursuer being a notorious Robber, or holden and repute so, had robbed him of as much, and so he might justly have seized upon the like quantity of the Pursuers Goods, though he had not first required the Sheriff to repair him; nor was this Act found to be innovat by the 100 Act, Par. 11. Ja. 6. which appoints a new method for Goods taken away by Clanned Men.  

ACT 17.  HEre is a Revocation of the King's Property in general, but I find in the Registers of Council, that upon the 22 of March 1684. The King revocks all Rights made by him of the abbacy of Dumfermling, which Revocation is made with the consent of the Privy Council, though ordinarily Revocations are made by the consent of the Parliament.  

ACT 18.  BY this Act the nearest Agnat, that is to say, the nearest of the Father's side should be Curator to Fools, Idiots, and Furious Persons.  
Observ. 1. That this Act is extended to Deaf and Dumb Persons, to whom likewise the nearest Agnat is to be Tutor, and though their Tutors and Curators are to be served by this Act, yet if the nearest Agnat omit, or is uncapable to serve, there is place for a Dative; nor doth this Act exclude the Father from leaving Tutors in his Testament to such Idiots, and Furious Persons, as are within the years of Tutory, as he may do to other Children: and Craig observes that if the Furious Person, or Idiot have Lands, the Superior will be preferred to the nearest Agnat; but in this I differ from Craig, for the Agnat will be preferred to the Tutory of these, as he will be to the Tutory of Minors, and Superiors have by this Act dispensed with their Feudal interest, if they had any.  
Observ. 2. This Act relates to the Common Law, by which the Curators are called Curatores Legitimi; but by that Law, as by ours, if there be no Agnats extant, the Judge gives a Dative, who is preferred to all other nearest of Kin, Vid. Tit. ff. de curate. Furios: And the Agnats by that Law, as by ours, are preferred according to the same degree as they would succeed, which is most just, since the Law does prefer them to the custody of the Estate, because of their hope of Succession, and therefore it may be doubted where there are three Brothers, whereof one is furious, if his Estate be conquest, whether the elder Brother will be preferred to be his Tutor, because Conquest ascends; but I incline to think that the Heir of Line is still to be Tutor of Law.  
Observ. 3. That this Law appointing the nearest Agnat to be Tutor, holds only where there is not a Legal Administrator, and therefore if a Wife who is an Heretrix become Furious, the Husband and not the nearest Agnat will be her Tutor; and though Papinian thought the Husband should not be Tutor, l. 14. ff. de Curate. Furios. Yet the customs of other Nations agree with ours, Perez. num. 10. h. t. vid. Act 67. Par. 8. Jam. 3.  
Observ. 4. Though this Act equiparats the Tutors of Fools, Idiots, and Furious persons, to other Tutors of Law, allowed to Minors, yet there seems this difference betwixt them, that Tutors of Law to Minors must serve within year and day from the time they are in capacity to serve, but the nearest Agnat may serve himself Tutor of Law to an Idiot or Furious Person at any time, and when he is so served he will be preferred to a Tutor Dative, though the Lords will authorise that Tutor Dative to exerce till a Tutor of Law be served, the Exchequer being in use in the interim to grant Datives, as the Lords of Session are to grant Curators ad lights, 21 January, 1663. Stuart contra Spreul; and though in that case the Pupil was not then declared Idiot or Furious by an Inquest, and so there could not be a Tutor of Law; yet it seems that albeit there had been a previous Declarator, and so the Tutor of Law had been negligent, the Decision had been the same, and the reason is, because this Act prefers the Agnats; and yet it decides not, quid juris, if they enter not; and what if the next Agnat require the nearest Agnat to enter, and he refuse quo casu, either it must be said that albeit the Exchequer make him Tutor Dative, yet he is not properly Tutor or Curator, but only a Curator ad lights, or else if he be once properly Tutor, the next Agnat cannot thereafter serve himself, nam Tutorem habenti Tutor non datur, vid. observ. on the 67 Act, 8 Par. I 3.  
IT is to be observed from this Act, 
ACT 19  that Laws ought not to be extended ad praeterita, but only ad futura; and as the Act says most reasonably, Subjects cannot observe what is not yet made; and not only so, but Argumento hujus Legis, it may be concluded that Processes are to be decided according to the Laws that were made before the Process was intented, though the Law be made before the Decision in the Process, which is very observable: a notable instance may be seen in Act 94. Par. 6. Ja. 6. where the Parliament makes an Act upon occasion of a Process depending before the Session, to be a rule in like cases for the future, but leaves the case depending to be decided as they think just. Vid. Observ. on 10 Act P. 3 Ch. 2.  
IT is by this Act appointed that no Signatures or other Writs shall be presented to his Majesty but by his ordinary Officers, 
ACT 20.  to whose Office the same properly belongs. And it appears by the Registers of Council, that this Act was a part of the remedy of that complaint mentioned in the 13 Act of this Parliament.  
Observ. 1. That by Officers here are meant Officers of State, for none else can present Signatures, and though a General Major or a Precedent be his Majesty's Officers, they cannot present Signatures, and yet any Officer of State may present promiscuously any Signature, though it would seem by these words, By his Majesty's ordinary Officers, and to whose Office the same properly belongs, that every Officer of State may not promiscuously offer, but that the Thesaurer or Thesaurer-Depute can only present Papers relative to the Thesaury, the Justice-Clerk to the Justice Court, etc.  
Observ. 2. That though any Officer of State may present Signatures, yet by the 60 Act 1 Sess. 1 Par. Ch. 2. any Officer who presents such Papers is obliged to send the Registrat Docket to the Secretary, to the end his Majesty be so informed as that he may not grant double Rights.   

King James the sixth, Parliament 11.  
BY this Act the King's lawful Age is declared to be 21 years complete, 
ACT 22.  which Act was made to prevent a debate that had fallen out in France a little before that time, where the Parliament of Paris had declared that the French King was not Major till he had completed the last year of his Minority, whereas the Parliament of Roven had declared him to be of lawful age, when he had begun the last year of his Minority, nam in favorabilibus annus inceptus habetur pro completo; and though Minors may revocke deeds done at any time before the last moment of their Minority, and that Minoritas computatur de momento in momentum; yet it is advantageous for a King to enter upon the Government of his Kingdom as soon as can be. And though this be the age for reducing of deeds done by them, they have another Majority in relation to the Government, for we find that Josias entered upon the Government at 8 years, and Solomon at 11. Cicero Philip. 5. tells us, that the Kings of Macedon entered very early, and in Anno 1375. the Kings of France were declared to be Majors and capable of the Government at 14. but by the Commission of Regency set down in the Act 1. Par. 1. Ja. 6. The Regency is declared to continue till 17. at which time the King is to take upon him the Government; but yet King James 6 took it upon him sooner; nor do I find any particular time limiting the King as to this point, and therefore there may be many doubts amongst us whether the King or the Governor should be obeyed betwixt the King's ages of 14 and 21. but before 14 no Pupil is thought fit by Law for administration; and it may be strongly urged that 17 is the Legal age, for why was the Commissions insert, it being only a temporary right, and such use not to be insert amongst our Laws.  
By our Law minority runs in all persons to the last moment of 21 years; whereas by the Civil Law, it runs till 25 years complete; and in this our King differs not from others, but because by the 2 Act Par. 1 Ja. 2. Our Kings were declared to be in minority till 21 years, therefore by the 87 Act Par. 10 Q. Marry. 21 years of age complete, was declared to be the perfect age of our Queens; and by this Act it is declared to be the perfect and lawful age of our Kings. It were to be wished, that for proving the age of all Minors, there were authentic Registers appointed, as in other Nations, and in some parts of our own, since for want of this, true probation of their birth perisheth, and false probation is adduced.  
OBserv. 1. That by this Act, 
ACT 24.  the receipting persons of the Romish Religion, is not simply made Criminal, except they did reset them for three days together, or at three several times, knowing that they were such, which may be urged in all cases of Intercommuning, and resetting of Rebels, and yet in other cases once and short Intercommuning is sufficient to infer a Crime.  
Observ. 2. That by the 164 Act 13 Par. Ja. 6. The resetting excommunicate Papists, or Traffecting Jesuits for three nights together, or three nights at several times, is made sufficient to infer that they knew they were such per presumptionem juris & de jure, nor could the knowledge of their being such be otherways proven, and if it had been necessary to prove their knowledge, the Law might have been easily eluded by industrious ignorance; and by that Act likewise, the third fault is declared punishable as ●reason; and because the punishment was so great, it was just the presumptions whereby it was to be inferred should be strong.  
THough by this Act only the Sellers and Dispersers of erroneous Books, are to be punished at our Sovereign Lords will, 
ACT 25.  and such Books to be burnt; yet by our practice, the Bringers home of Crucifixes, Popish-beads, etc. are to be used in the same way; and though there is only warrant here given to a Minister and Magistrates of Burgh to seize, and burn such Books; yet Magistrates use frequently to seize without a Minister, and Sheriffs and other Officers do likewise seize, but since burning seems to be an extraordinary power, and so not to be assumed without a special Statute. I think that no Officers, save Magistrates of burgh's, with the concourse of a Minister can burn·  
THe reason why Ministers Benefices under Prelacies, 
ACT 26.  are declared to be free of the first Fruits, and fifth penny of their Benefices, is because in time of Popery, the first years Fruits of every Benefice were due to the Pope, and are called by the Canonists Annata, against which several Councils have made large, but ineffectual Representations, and the fifth penny was payable to the King, and though this Act discharges only the exaction of these in Benefices under Prelacies, yet now even Prelacies are free from these exactions in Scotland, though in England the first Fruits belong still to the King.  
Though the Priests were free from Subsidies amongst the Egyptians, Genes. 47. vers. 22. and that l. placet C. de Sacr. Eccles. nihil extraordinarium abhinc superinductumve ab Ecclesia slagitetur; Yet this was only as to Tithes, and things merely Spiritual, but the Lands of the Church were liable to Impositions, laid on for the common Defence of the Country, and therefore the Canonists, ad c. 1. de immun. Eccles. give as a Rule, that in bonis Ecclesiasticis ut Cleri●●s in patrimonialibus ut laicos tractandos, and such was this fifth penny here mentioned; and with us Ministers stipends, but not Bishops Lands, are now ordinarily freed from Impositions.  

ACT 27.  OBserv. 1. That though such as invade Ministers for the Causes therein exprimed, viz. for seeking their Stipend; or because the Minister inflicted Church-censures upon them, or any other forged quarrel, are to be punished with all rigour; yet if they invade them upon any account, that is not Ecclesiastic or premeditat, as in an accidental scufle, they are only in these cases punishable as for wrongs done to other Subjects.  
Observ. 2. Since the Act appoints that they may be punished with all rigour, and the tinsel of their Movables; It is clear that such Invaders may be punished likewise personally, besides the Confiscation of their Movables; yet the words, with all rigour, should not be extended to death; but by the 4 Act Sess. 2 Par. 2 Ch. 2. The assaulting the lives of Ministers, or the robbing of their Houses, is declared punishable by death; and by the 5 Act 1 Sess. of the said 2 Par. The Parochioners are made liable for the Outrages done to Ministers, if the Actors cannot be got.  
Observ. 3. From these words, That they may be punished at the Instance of the Minister, or any other that will pursue; This Crime is made so far crimen publicum, that it may be pursued per quemlibet ex populo, though he be not otherways interested.  
Observ. 4. That this Act being only against Invaders of Ministers, it is extended to Invaders of Bishops, and all such as have power to administer the Sacraments, 7 Act Par. 1 Char. 1. In which Act there are many other Extensions of this Law.  

ACT 29.  THe Popish Clergy had right to Lands that were mortified to, or bought by them, and to Teinds which belonged to them as Churchmen; The Teinds were called the Spirituality of their Benefices, because they belonged to them as Churchmen, and the rest was all comprehended under the Designation of the Temporality of their Benefices, and upon the abrogation of Popery, the King did begin to erect some of the Temporality of their Benefices in Lordships, which He Disponed to several Noblemen, who were most active in the Reformation; Or to these whom He resolved to oblige by their Interest, to be active in it, and these were called ●ords of Erection; but thereafter the Parliament resolving to fix a constant Rent to our Kings, thereby to preclude the necessity of Taxes, and to engage future Kings not to return to Popery, they annexed the Temporality of all the Church-lands, and Benefices to the Crown by this Act.  
Observ. 1. The reason whereupon this Act is founded, is, that the former Kings having mortified a great part of their Revenue to Churchmen, and having thereby impoverished themselves and their people, it was therefore just, that the ends for which these Mortifications were made, being declared unlawful, the Benefices should return; by this reason such Mortifications as were made by private Families, should have returned to them; whereas here all returns to the King: But in Law these Religious Houses being demolished, all aught to have fallen in to the King; for qua nullius sunt ea sunt domini Regis; and these were such, for they belonged not to the old Proprietars, since they were once Disponed; nor to these Houses, since they were extinguished, and that being found a false Religion, what belonged to it, did by the Law fall under Confiscation.  
Observ. 2. Though all Benefices belonging to Archbishops or Bishops, are by this Act annexed, yet they are restored by the 2 Act Par. 18 Ja. 6. And though all Benefices belonging to Chapters are annexed, yet these are restored by the 2 Act Par. 22 Ja. 6.  
Observ. 3. From these words in the Clause of Annexation, viz. All and sundry Common-lands bruiked by Chapters of Cathedral Kirks, or whereof they have been in possession as Commonty; That Possession in Church-lands, is very often repute a sufficient Right, and to be loco tituli, For understanding whereof, it is fit to know, that both before and after the Reformation, a Churh-man being in possession by the space of seven years, though without a Title, has the benefit of a possessory Judgement, so that his Right cannot be quarrelled without Reduction; nor needs he produce a Title, as Laics are obliged to do in possessory judgements, July 18. 1671. Earl of Hume contra the Laird of Rislaw. And if he be thirteen years in possession, that possession is to him in place of a Title, for by a rule of the Chancery (as we believe) docennalis & triennalis possessio habetur protitulo; though I find no such Rule in the Roman Chancery, but yet these thirteen years induce only a presumptive Title, which does not exclude the true Proprietar, if he can instruct that the Beneficed person possessed either by a redeemable Right, and produce the Reversion, as was found in the case of Francis Kinloch, contra the Bishop of Dumblane, July 11 1676. Or by a precarious Right, as was found in the case of a Minister, who had casten Peits for thirteen years by tolerance from the Heretor, and though there be no difficulty where the Right mortified does expressly bear, that it is Redeemable or Precarious; yet in absolute Rights, there is greater doubt whether after thirteen years they can be qualified by correspective Obligations.  
The reason of this privilege given to Church men, is, that they being employed in Divine Matters, are ignorant and careless of their Right, especially since their Rights are not to descend to their own Heirs.  
It is fit here to take notice that by a vulgar error triennalis possessio was thought to give the benefit of a possessory judgement, 12 March, 1629. Marshal contra the Laird of Drumkilbo, and decennalis of a petitory, and thus did they interpret the former rule. At the Reformation also the Popish Clergy did either send their foundations to Rome, or did by collusion with the Laics interested, or in hatred of the Reformed Clergy, destroy their Rights; and therefore by an Act of Sederunt 16 December 1612. It is declared that ten years' possession before the Reformation, or 30 after the Reformation, should be a sufficient right either to Churchmen, or to the King's coming in their place, by virtue of this Act, and conform thereto the Lords decided July 5 1626. Laird of Kerss against Reid.  
Observ. 4. That because the Romish Clergy were put from their Benefices, therefore they are by this Act freed from any warrandice they had given for Church Lands disponed by them; and by the 110 Act of the same Parliament, what is here Statuted as to the warrandice of Lands, is there extended to Tacks, Pensions, and Assignations, and so these two Acts are not absolutely co-incident, and the last unnecessary, as they would seem to be, and though this was done in majorem cautelam, yet by the common Law they would not have been liable in warrandice, since no man is liable in warrandice where the eviction proceeded upon a supervenient Statute, for no man can warrant against a supervenient Law.  
Observ. 5. That notwithstanding that the Church-Lands are annexed, yet there is a dissolution in the same Act, warranding his Majesty to Feu any of the said's Church-Lands during his own time.  
Observ. 6. That though by this Act all prior Dispositions made of Church-Lands by his Majesty to Lords of Erection are excepted from the Annexation, yet the Superiority of all the Erections both before and after that Act, are annexed to the Crown, by the 10 Act Par. Ch. 1.  
Observ. 7. That the Spirituality of Benefices, viz. their right to the Teinds is expressly declared not to be annexed, but to remain with Churchmen as formerly; for though by the 149 Act Par. 13 Ja. 6. it be said that the Teinds of Dumfermi●●g are annexed to the Crown after the form of the Act of Annexation, 1587. by which all the Teinds of the remanent Kirk-Lands and Prelacies of the Kingdom are annexed; yet that Clause is only insert by mistake in my judgement, for that is not the design of the Act.  
Where Stock and Teind are promiscuously Feved, it is declared by this Act that his Majesty remains Superior both as to Stock and Teind, the Churchmen having only right to the tenth penny of the Feu-duty, the other nine belonging to his Majesty for the temporality being only annexed to the Crown, and the Teinds being reserved to the Church, it was very just that where a duty was payable out of Church-Lands, cum decimis inclusis, the King should only have right to a ninth part of that duty, and the tenth should belong to the Churchman or Titular, in contemplation of the Teinds; but still decimae inclusae are so fully exempted from all Ecclesiastic payments, that though there be not sufficiency of Teinds in the Paroch, yet decimae inclusae are never burdened with the payment of Ministers Stipends, though Ministers Stipends be the constant burden of all Teinds; and for the same reason it was found 21 January 1633. that no Valuation could be led of Land Feved, cum decimis inclusis, and not confirmed before this Act, and that Laics might prescrive a right to them, but not to other Teinds, which shows that decimae inclusae are never looked upon as Teinds.  
For understanding the origine and nature of decimae inclusae with us, it is fit to know that by the Canon Law the Parson or Incumbent and the Paroch Church were founded in the right of all the greater Tithes, called decimae praediales, and that it was not lawful for any man to abstract their Teinds from it, cap. de decimis 16. Quest. 1. And albeit the Popes did pretend that since the Bishops had the management of the Teinds, they as universal Bishops might by their supereminent transcendent right appropriate them to the use of Monastries, Monks being the best of the poor, and Teinds being naturally burdened with the maintenance of the poor; yet our King's who in all the tract of our Parliaments owned their own Regalia, and the Episcopal Order against the invasions of the Popes, did by the 7 Act, Par. 2. Ja. 4. declare it a point of Dittay, that is to say, Criminal for any man, to take a right of Teinds from any, save the Parson, Vicar, or their farmers, so far they acknowledged the Parochial Churches to be founded in their right to the Predial Teinds.  
Notwithstanding whereof, the Popes to get the Monks to depend immediately upon them, did grant to those Monks, exemptions from payment of Tithes, for they as well as others paid to the Parson or Incumbent, till Pope Paschal the 2 d granted those exemptions, but these exemptions did thereafter so far diminish the provision of the Parson (very many Lands, being either mortified to them, or bought in by them) that Theodosius and other Emperors were forced to make Laws against exorbitant Mortifications; and Pope Adrian was forced to limit the exemptions to four Religious Orders, Cistertians, Hospitalers, Templars, and Knights of St. John; still allowing all of them Exemptions for their Novalia or Lands, first cultivated by themselves; But Pope Innocent the third, in the Lateran Council, thereafter ordained, that even these four Orders should pay Tithes for what Lands they should acquire after that time; which I, the rather observe, because it has been decided by our Session, July 15. 1664, Thomas Crawford contra Prestoun Grange; that Lords of Erection succeeding in place of the Cistertian Monks, should be free from Tithes, as the Monks were without adverting whether these Lands for which exemption was pleaded, were bestowed on their Monastries, after the year 1120. and it seems that this Exemption should not be allowed to these Monastries, since they were not allowed to the Temple-lands with us, and that such privileges are due to neither, because this was a personal privilege given to the Monks, as the Poor, and so should not descend to the Lords of Erection. The Monks being thus Masters of many Tithes, feued out their Lands and Tithes promiscuously, for the encouragement of the Labourers, who have always thought it a loss and a slavery to wait till their Tithes be drawn.  
Laics also enjoyed Tithes, and alienated them as their own heritage, for many ages together, it being generally believed, as Selden contends, that the Tithes were not due to Churchmen, they having Right only to a Maintenance, jure divino; though others ascrive these Laical Infeudations to a corruption begun by Charles Martel King of France, who to gratify and pay such as were to assist him in the Holy War, Disponed to them the Tithes consentientibus Episcopis, who knew that if the Saracens prevailed, Religion would be destroyed, and he promising to restore them; But after this time it is undeniable that de facto, Teinds were Disponed to, and by Laics, till the Lateran Council 1169. in which the Canon was made, prohibemus ne laici decimas cum animarum suarum periculo detinentes in alios laicos possint aliquo modo transfer. Si quis vero perceperit & Ecclesiae non reddiderit Christiana Sepultura privetur; But yet before that time, Laical Infeudations were Discharged, per Concilium Turon: 1096. Though we in this Nation consider only the Discharge, in the Lateran Council.  
It remains clear from these Informations, that our decimae inclusae, are in effect the same with the decimae infeudatae in the Canon Law, and these are called decimae inclusae, where the Stock and Teinds were never separated, but were feued jointly before the Lateran Council; but yet it seems that all decimae infeudatae, are not esteemed inclusae with us; for in a Case betwixt Monimusk and Pitfoddels, Teinds were found not to have the privilege of decimae inclusae, though Transmitted by Infestments, and called decimae inclusae, because there was separat a Reddendo, paid for the Teind and Stock, and so it could be known to be different from the Stock, albeit it was contended that decimae inclusae and infeudatae, were pares termini, and a different Reddendo did not evince that the Teinds had ever been separated from the Stock, but only that there was a different Duty, as is in Lands of the same holding oftimes, and it may in general seem strange, why we should add, since the Lateran Council, for that Council did find that Laics before that time were incapable of any Right to Teinds; and therefore all Feus' of Teinds, whether before the Lateran Council or after, should be null, and this Error it seems has been occasioned by our concluding, that because Laics were declared uncapable of them by that Act, therefore they were capable of them before it; and yet with us a Laic cannot prescrive Teinds, because he is not capable of them; and Balsour tells us a Decision wherein not only alienations of Teinds, but even Tacks of Teinds for three nineteen years, were accounted alienations, and so null, for else Discharging alienations might have been eluded by setting long Tacks: But now Teinds pass by Infestments, as the Stocks does, since the Surrender, and His Majesty's Decreet thereupon, wherein every man may buy his own Teinds, and so may set as long Tacks of them as he pleases, or Feu them out cum decimis inclusis.  
But it may be alleged this tenth part payable to the Ecclesiastic person for Teinds, may be made liable to Ministers Stipends, since this tenth part must be constructed as Teinds, and so should be liable to all the burdens of Teinds; but to this it is answered, that these decimae inclusae are considered as a part of the Stock, and so no more liable to Ministers Stipends than the Stock is; this division of the Feu-Duty doth not alter the nature of the decimae inclusae, but is only insert to regulate the way of payment of the Feu-Duty, even as if after a Feu granted of Stock and Teind promiscuously for a Feu-Duty, the Churchman should dispone nine parts of the Feu-Duty, and reserve only the tenth to himself, that tenth part could not be liable to Ministers Stipends. 2. Since this Act by the death of the Titular both Temporality and Spirituality came in his Majesty's hands, and so were disponed to the Lords of Erection, and returned to them without this distinction of nine or tenth parts.  
Though by this Act Teinds are declared the Spirituality of Benefices, yet they may be sold, and are appointed now to be sold by the Parliament 1633. and the Heretors are to be infest in them as in their other Lands, which seems inconsistent with their being the Spirituality of Benefices, and the Patrimony of the Church; but it may be answered, that they are even in that case burdened with payment of Ministers Stipends till they be competently provided.  
Observ. 8. By this Act all Lands and others mortified to Colleges, are excepted from the Annexation, and the reason is, because Kirk-Lands remain still to be such, albeit they be mortified to Colleges, 12 Feb. 2635. Tock contra the Parochiners of Achtergoven, and therefore it was necessary to except them. Maisons Dieu, or Hospitals are also excepted, and Maisons Dieu are Hospitals dedicated to the honour of GOD, it is a French word signifying the House of God; the Canon Law calls them Domus Dei, and makes them Hospitals.  
Observ. 9 Pensions likewise out of Church-Benefices are excepted, if they be authorized either by Decreets, or Possession, but possession of a part is repute possession of the whole; and by the 137 Act 12 Par. Ja. 6. this Act is ratified, and it is declared that all Pensions out of the Spirituality or Temporality, neither clad with Decreet nor Possession in the Prelates life-time who disponed the same before this Act of Annnexation, shall be null, but if they be clad with possession in manner foresaid, they are valid against singular Successors, though Pensions granted by Laics are not valid, albeit they be clad with possession prior to the singular Successors right, as was found the 11 of December, 1662. Clappertoun con. the Lady Ednem; but by the Act 140 Par. 12 Ja. 6. Pensions granted by Churchmen should contain the particular names of Tenants and Duties, vid. observe. on the 62 Act of this Parl.  
Observ. 10. By this Act it is declared that the Bailie or Steward of the Regality shall have the same power he had before to repledge from the Sheriff, or Justice-general, in case he hath prevented the Justice-general by apprehending or citing the person before he be apprehended or cited by the Justices, but if the Justices have prevented, as said is, than the Bailie of the Regality, or Steward, shall not have power to repledge, but he may sit with the Justice-general if he pleases, so that in effect by this Act there is this difference betwixt the Ecclesiastic and Laic Regalities, that there is a right of repledging competent to the Laic Regalities, whereas Ecclesiastic Regalities have not this privilege except they prevent the Justices, but otherwise the Bailie of Regality may only sit with them; the reason of which difference is, that the Regalities having been only granted in favours of the Religious Houses, which were suppressed, the Regalities became extinguished with them, and his Majesty having ex gratia only reserved their Offices to the Lords of Erection, he thought that they were abundantly gratified by this new Concession, without allowing them the power to exclude his own Justices, in case of prevention; and this was also a favour to the Liege's in not troubling them with two Courts, nor were the Lords of Regality much prejudged, for by this same Act they retain the whole right to the Escheats and Fines, even of these who are condemned by the Justices.  
Observ. 11. That the Parliament has been so careful of the Vassals and Fevers of Kirk-Lands, that because the King who is declared Superior by this Act of all these Lands was a more powerful opposite: Therefore by a Clause in this Act it is provided that the King shall not quarrel their Rights to these Kirk-lands, save by Improbation, or by a Reduction only for a diminution of the old Penny-mail, de liquido ad liquidum, that is to say, that though such rights may be quarrelled as granted with diminution of the Rental, or by unlawful conversion, yet no diminution shall reduce their Feus', except where the diminution is of old Rentals, because about the time of the Reformation Feus' were granted for high Feu-duties, and these being renewed again for less than were once paid, the Feu might have been questioned, because though the Feu-duty was less than was once paid, yet it was not below the old Rental, de liquido in liquidum, as if five Marks were taken when ten was of old paid, without consideration of Conversions, so that though ten Marks were taken in the Feu quarrelled in place of ten Bolls, that would be no relevant reason of Reduction, and since by the Act of Parliament, 1633. Erections are annexed to the Crown: The Lords found that the Lords of Erection cannot now pursue Reductions or Improbations of their Vassals Kirk-lands, and that his Majesty's Advocate could not insist in any such actions, except he had an express warrant from the King, though it would appear that this Act is a sufficient warrant to pursue Improbations or Reductions for diminution in the terms of this Act, 24 of June, 1664. Laird of Prestoun contra Nathaniel Ebred.  
Observ. 12. That Lands belonging to the Benefices of Laic Patronages, are excepted also from this Annexation, by which are meant only such Laic Patronages, as were lawfully established before the Reformation, and not such as were Disponed by the King to Laics, and to which he had Right, as coming in place of the Pope, who was Universal Patron in dubio, before the Reformation, for these are still accounted Ecclesiastic Patronages, since they were so originally, and so ought not to have been excepted from this Act, but whether all the other Patronages, which belonged formerly to Monasteries, were annexed to the Crown by this Act, was fully Debated, November 1677. in the Case of Stevart contra the Laird of Watertoun; and that they were annexed, was urged, because by the first words of this Act, the Abbacies, etc. and all Profits, Emoluments, whatsoever belonging to them were annexed, and there being nothing that the King and Parliament was more concerned in, than to have the Patronages depend upon the Crown, thereby to prevent the influence that Schismatic private Patrons might have; It was most reasonable to think, that when all things belonging to Monasteries, were annexed, these should have been annexed. Likeas, Sir Thomas Hope among other Rights craved to be reduced, craved likewise that all the Rights made to the Lords of Erection of the Patronages belonging formerly to Monasteries, should be reduced as contrary to this Act, upon which Reduction the Lords of Erection did submit their Rights to these Patronages, and in the King's determimination upon that Submission, His Majesty determined that the Lords of Erection should have only Right to the converted prices of their own feu Mails, and feu Ferms of their Superiorities, etc. It was likewise there contended, that the said's Patronages were likewise annexed by the 13 and 14 Acts of the first Parliament Ch. 1.  
To which it was answered, That Patronages were never annexed as parts and pendicles, but where it was designed they should be annexed, they were still annexed per expressum, as in the annexation of the Abbacy of Dumfermling, Act 189 Par. 13 Ja. 6. and it were absurd to think, that since the foresaid general Clause did annex things of the meanest consequence, such as Service of Tenants, etc. that it would have omitted things of so great consequence, as were the Patronages of many Monasteries; nor did any of the Liege's who had Right to such Ecclesiastic Patronages from the King, crave ever a Dissolution of them in Parliament, which certainly they would have done, if they had looked upon them as annexed, nor were they annexed by the 13 and 14 Acts Par. 1 Ch. 1. Because these Acts do not mention Patronages per expressum, nor can they be comprehended under the general word, pertinents, expressed in these Acts, for the reasons foresaids, and to evidence that His Majesty had determined nothing as to the Patronages belonging to the Lords of Erection, His Majesty does in the 1 Parliament 12 Act Ch. 2. express these words, Likeas, also the the remanent points of our said Commission anent the patronage of Kirks, etc. are not yet begun to be Treated; therefore, etc. This Debate came not to a Decision.  
What the condition of our Teinds is since this Act, shall be Treated fully in my Treatise of Teinds, as also whether the Obligation of paying Teinds proceeds from the Moral, Judicial or Common Law is not agreed to, but the most ordinary opinion is, that they are due to Church men, before any positive Law, and the quota. of Tenths proceeds from positive Law, and D. Thomas part. 3. Quaest 6. makes the Tenth to be due, because as all Digits under ten, are imperfect, and do tend to ten as their perfection; so man being naturally lost, we pay our Tithes to these Ministers by whom our perfection comes; and thus some Schoolmen conclude, that Tithes flow from the Moral Law, in so far as they are a necessary Maintenance for Ministers, from the Judicial Law, in so far as concerns the number of ten, and Cerimonial in so far as concerns the foresaid Typicals, nor can it be denied that Abraham paid Teinds (before any positive Law (to Melchisedeck, though the Learned Selden Interprets this place only to be the Tenths of what was taken by the War, and that from Josephus and from Heb. cap. 7. v. 2. and the Greek word there used, does properly signify spoils, called by Sulpitius Severus decimam praedae but yet I see not why that alleged Custom among the Jews, of giving the Tithes of their Spoils, could have proceeded from any other ground, than that which was common to all Tithes, nor can I believe Selden, who asserts that Tithes were not paid in the primitive Church, till the days of St. Augustin, and S. Ambrose, for if we do not controvert the Truth of all Authority, we will find the payment of Tithes much older.  
Teinds were likewise accounted Spirituality by the Canonists, vid. Rebuff. Quaest 2. num. 9  
How these Teinds came to belong to Monastries, may be doubted, since naturally the Curates of the respective Paroches, are founded in jure communi quoad the Right to their predial Teinds, so that they need not prove their Right thereto, and this was very just, because they having the Cure of Souls ought likewise to have had that which was given as an encouragement of that Cure; and though to this the ordinary answer be, that the Pope who had only Right to alienat such Teinds, did use to give them to Monastries, nam licet ille jus divinum tollere non potest tamen modificare potest, yet I conceive that our Kings, and even our Laics, with the consent of our Kings, did think they could bestow the Teinds belonging to these Kirks, whereof they were Patrons upon Religious Houses, whereof I have seen very many Instances in our old Charters, one whereof, I shall set down for an Example, Alexander Dei gratia Rex Scotorum, etc. Sciant tam posteri quam praesentes nos concessisse, etc. Deo & Ecclesiae sanctae Mariae de Dryburgh Ecclesiam de Lanarch (now Lanerk) cum terris, & decimis & omnibus rebus juste ad illam pertinentibus.  
Item, How the other Church-lands became first to belong to Monastries, I shall God-willing clear in an express Treatise concerning Kirk-lands and Teinds.  
THis Act is Explained in the former Revocations, 
ACT 31.  only here the Fees, and Pensions granted to the Officers of the Crown are excepted from this Revocation, and the Officers of the Crown are declared to be the Thesaurer, Secretary, the Collector (which Office is since joined to the Thesaurer) the Justice, that is to say, the Justice-General, Justice-Clerk, Advocate, Master of Requests, Clerk of Register, and the Director of the Chancellary, the Director of the Rolls is but his Deput: The Order wherein they are set down, makes the Advocate to preceded the Register, and though the Justice Clerk be named before the Advocate, yet that is only because in all this enumeration, these of one Court, are still set together, and therefore the Justice, Justice Clerk, and their Deputs, are still set together; but it would appear that the Justice-General should by this preceded both the Register and Advocate; But by Ch. 1. His Revocation, which is the 9 Act of his first Parliament, the Register and Advocate are ranked before the Justice and Justice-Clerk, & posteriora derogant prioribus.  
Nota, The Privy-Seal and Thesaurer-Deput, are not here marked, though they be both Officers of the Crown; The Precedency amongst the present Officers of State, was by Act of Council, February 20. 1623. thus determined, Lord Chancellor, Lord Thesaurer, Lord Privy-Seal, Lord Secretary, Lord Register, Lord Advocate, Lord Justice-Clerk, Lord Thesaurer-Deput, by Act of Parliament, 1661. the Precedent of Session was then, and not till then ordained to preceded the Register, Advocate and Thesaurer-Deput, and the Register and Advocate than were ordained to preceded the Thesaurer-Deput.  
By this Act of Revocation, all the Exceptions in any former Acts are likewise revoked; but under this part of the Revocation, do not fall the Exceptions in the former Act of Annexation, for King James was then major, and though he had not been major, yet these Exceptions being made by a public Law, it may be said that public Laws cannot be taken away by a Revocation; for the Revocation is but a private Act of the Kings, whereby His Majesty secures Himself against private Deeds done by Himself in His Minority, but not against what He consented to as public Laws.  
By the last Clause of this Act it is provided, that his Majesty shall not be prejudged by suffering any party to possess any Lands, or others fallen under the Revocation, but that his Majesty may put his hand thereto at any time, but any obstacle, by the first part of which Clause it is not meant that prescription shall not be valid against the King, but only that the possessors shall not have the benefit of a possessory judgement; and by the last Clause it appears that our King's having revocked, they needed not intent Reductions ex capite minoritatis, but may brevi manu intromet with what falls under Revocation, even as they may do in their annexed property; for this same Clause is like to that contained in the Annexation, Ja. 2. Par. 11. Cap. 41. and which is repeated in all the other Acts of Annexation: See Observ. upon that Act; but it is more reasonable to think that the King needs no Reduction, because he must prove Lesion in case of Reductions ex capite minoritatis; but the King needs prove nothing in the case of Annexation, yet our King is still in use to pursue Reductions, and not summarily to dispossess these who have right.  

ACT 33.  WHilst our Parliaments grew very factious in the time of Q. Marry, the Popish and Protestant Party contending who should prevail in Parliament, the Popish Clergy, who were very numerous in Parliament, since all the Bishops and Mitred Abbots did sit there as Churchmen, each of them who had Lands and heritage craved two Votes, one as Churchmen, and another as Barons: To prevent which for the future, this Act was made, discharging any of the three Estates to take upon him the Office of all the three Estates, or any two of them, but the following words are not so clear, viz. That every man shall only occupy the place of that self same estate wherein he lives, and of which he takes the style, which was designed to keep Barons who could not get themselves chosen to represent their Shires from being chosen as Burgesses of Parliament, though they were Provosts, or Magistrates, as they then ordinarily were; and by it also a Burgess who is ordinarily so designed, may be debarred from being chosen as a Baron of a Shire: This Act was long in Desuetude, but of late by Acts of Burrows all Burgesses are discharged from electing Gentlemen, to represent them in Parliament, under the pains specified in these Acts; for they found that Gentlemen did not adhere to, nor understand the true interest of burgh's; and the King found that none desired to be so elected, except such as had private designs, albeit upon the other hand▪ it is represented that this is the way for Burgesses to have their interest maintained by Lawyers or able Statesmen, either of which they may choose; and the people of England, who are very jealous of their privileges do choose such, by which likeways their Parliament is so considerable, and their Laws are made by so judicious Lawyers. But by an Act of the 3 Par. Ch. 2. it is determined that only actual Trading Merchants can represent Burghs-Royal in Parliament; and that Act was founded upon an express Decision of the Session.  
THe unlaws for absents from Parliaments here set down are 300 pounds for every Earl, 200 pounds for every Lord, 
ACT 35.  100 pounds for every Prelate, and 100 Marks for every Burgh, but there is no penalty appointed for Barons, and I think that they are comprehended under the word Lords, for the Lords and Barons make but one State of Parliament, and Laird is but a corruption of the word Lord; of old 10 pounds only was the unlaw or amerciament, as is to be seen by the Preface of all the Acts of Parliament, which bears ordinarily these words, alii vero quasi per contumaciam se absentaverunt quorum nomina patent in rotulis sectarum quorum quisque adjudicabitur in amerciamento decem librarum.  
THis Act appointing every State of Parliament to have three Apparels, conform to a pattern to be made, 
ACT 36.  was not made that every man might have three several Habits, but to the end each distinct Estate might have a special Habit, and yet Barons nor Burgesses have as yet no distinct Habit for Parliament.  
FOr understanding this Act appointing the number of the Lords of Articles in every State to be equal, 
ACT 37.  and that the most shall not exceed ten, nor the least be fewer nor six, it is fit to know that by the 1 Act, 3 Sess. Par. 1. Ch. 2. The Lords of the Articles are ordained to be elected and constitute in manner following, viz. the Clergy choose 8 of the Nobility, the Nobility 8 of the Clergy, and these sixteen so elected, or such of them as are present do choose 8 Barons, and 8 Burgesses, to whom are added the Officers of Estate, and the Chancellor Presides: And the Articles being so constitute, do prepare Laws, Acts, and Overtures, and orders all things remitted to them by the Parliament.  
BY the 135 Act, Par. 7. Ja. 6. no Advocate could plead in Reductions of Forfaulters without a licence, 
ACT 38.  which is abrogated by this Act; but because this Act gave leave only to persons accused before the Parliament to have Advocats without licence, therefore by the 90 Act of this Parliament Advocats are ordained to plead in all Criminal Cases, and they do so upon Supplications. This craving a Licence was founded upon 98 Act, 14 Par. Ja. 3· vid. crim. observ. tit. Advocats.  

ACT 39  THis Act is fully cleared, crim. observ. Tit. Jurisdiction of the Parliament.  

ACT 40.  IN this Act the King promises to do nothing that may prejudge the liberty of Voting and reasoning, but yet if any person should offer to argue what is downright Treason, this Act would not defend him, for by voting and reasoning jointly may be inferred that that reasoning is only allowed, which relates to a stated case, and to be put to the Vote, and nothing that is treasonable will be allowed to be stated in order to a Vote.  

ACT 41.  THis Act discharging all contention for priority of place, relates only to Parliament, and the disturbance thereof, but by a Decreet of Ranking, in anno 1606. his Majesty having ranked the Nobility, has commanded them to observe the Precedency there assigned in all places, and that under the pain of being punishable as contemners of his Authority.  

ACT 42.  THough by this Act all actions of molestations are ordained to be pursued before inferior Judges, as being naturally but actions for cognoscing of Marches, where the controversy being facti, can best be understood upon the place, yet now such actions are ordinarily pursued before the Lords, because there is a Declarator joined with the molestation, for the Pursuer Libels, that though such Lands be his Property, yet he is molested in the possession thereof; and the reason of this Invasion is, because Declarators of Property, as all other actions concerning double Rights, can only be pursued before the Lords of Session.  
The form prescribed to molestations by this Act, is, that the Lords shall direct Letters to the inferior Judges upon 15 day's warning, who shall continue their Courts from 8 days to 8 days, and these inferior Judges having discussed the points of Law, they shall choose an Assize, the most part whereof shall have 4 Ploughs of Land, or 300 Marks of yearly Rent in the same or Neighbouring Paroches, if there be mutual pursuits, the Judge shall discuss both together, and choose an Assize out of the Assizes cited by either party equally, and the Odd-man to be choosed by Cavil; if the Judge ordinar be suspect, the Lords shall grant Commission by their own Act, or by a Commission under the testimony of the Great Seal to unsuspect Judges.  
This form is still almost in observance, only the Lords in dubious cases grant Advocations to themselves where the Judge is suspect, and after the Cause is debated, the Lords ordain the Ground to be visited by some of their own number, or grant Commissions to others, if the Lands lie very remote, but these Commissions under the testimony of the Great Seal are absolutely in Desuetude.  
If the most part of the Inquest be not clear, the Lords find that in that case the Cause should be Advocate to them as the Supreme Court, and they will judge according to the probation already taken, or will grant warrant to cite new Witnesses, as they did 21 July, 1675. Walstoun contra Cheislie. Though this Act appoints the Inquest to be chosen of Landed-men, having 4 Ploughs, or 300 Marks, and that in or near the Paroch where the controverted Land lies, yet the verdict will be sustained though they have not so much and though they dwell not in that Paroch, albeit there be such in the Paroch. This was formerly appointed §· 14. c. 74. lib. 2. R. M. where such cognitions are appointed to be per fideles homines de viceneto. And Skeen there observes, that Perambulations differ from Molestations, in that Perambulations are petitory Judgements, and concern Property, but Molestations are only possessory Judgements, though both tend to the trial of Marches.  
Nota, That by the last Clause of this Act, the Members of the College of Justice are exemed from Trial before Inferior Courts, which was formerly granted in Remove, p. 6. c. 39 Queen M. and is here extended to all Causes according to old accustomed use; and though it was alleged that their last words were restrictive, and so the Members of the College of Justice could not Advocate their Causes from Inferior Courts, except in such Cases only as they could prove old use and wont; yet these words are found Exegetick, and to be equivalent, as if the Act had said, because of old accustomed use, granting them that privilege, and this was very reasonable, for since they are obliged to attend the Lords, and their Clients, the Citing them before Inferior Courts had been inconsistent with both.  
The Action of Molestation is the same with us, that finium regundorum was by the Civil Law, and what can stop Perambulations in our Law, are set down, Statut. David 2. cap. 20. where amongst other things, it is observed, that a Minor is not obliged to Defend in Perambulations, and this is the only place in our written Law, where that old Maxim is to be found, minor non tenetur placitare de hareditate paternâ; and yet it seems that a Molestation being declared by this Act to be judicium possessorium, a Minor should be obliged to Defend in this, as he is in all other possessory Judgements; but the reason of this Exception in Molestations, seems to be, because ordinarily Molestations resolve in Declarators of property, or are joined with them.  
BY this Act the Defender is indefinitely to pay the Expense of the Obtainer of the Decreet, at the modification of the Judge, 
ACT 43.  vid. Act 110 Par. 7. Ja. 5. But though this Act be general, yet statutum quod disponit simpliciter ut victus victori in expensas sit condemnandus, hunc sensum admittit, si non habuerit justam litigandi causam, hic quippe sensus juri communi est conformis & rationi conveniens, Voet. de Statut. Sect. 7. cap. 2.116.  
BY the first part of this Act the Lords of Session are made Judges to the Interpretation of the Act of Oblivion; 
ACT 44.  whereas by the Act 67 Par. 9 Q. M. several particular persons were named for that effect. There is an unprinted Act, saying, that because several of the Lords were dead, and that because many legal actions arose upon the Indemnity, therefore this Act was necessary.  
By the second part of this Act, nine Lords of Session are sufficient to be a Quorum, and which is now observed, though by the 57 Act 5 Par. Ja. 5. ten Lords with the Chancellor or Precedent at the first Institution, were necessary to make a Quorum.  

ACT 45.  THis Act is fully Explained in the 78 Act 9 Par. Queen M. except in so far as concerns the Obligation laid by this Act upon the Notars, to bring their Prothecals to the Lords of Session, and which are to be kept by the Clerk register and his Deputs; these Prothecals are the Book, wherein Notars set down the Breviates of what Instruments they take, & protocollum est memorialis tabellionis scriptura qua in codice aliquo gestus acti substantia breviter adnotatur vid. gloss. in Novel. 44. the tabel. the reason why they are ordained to be brought to the Register, is, that false Papers may be hereby tried, and lost Papers may be made up, for if an Instrument be lost, the person in whose favours it was at first made, may raise an Action before the Lords, craving that it may be made up out of the Notars Prothecal, and this being nobilis officii, cannot be done before inferior Courts, Vid. 22 Act 22 Par. Ja. 6.  
Upon the 19 of February 1680. The Lord Register contra Sir William Primrose It was found that the Registers Deput, called the Clerk for the Notars was Deprivable, for not calling in the Prothecals of Deceased Notars, by the space of five years, to which the Lords found him actually obliged, though it was alleged, that by these Acts he was only obliged to receive the Prothecals, when they were brought in, but not to call for them, nor was it possible for him to know when Notars died, and therefore by this Act, Sheriffs, etc. are ordained to acquaint him of the Death of Notars, within their Jurisdictions, for it was urged that the Obligation to bring in the Prothecals, being committed to this Clerk, and he being only entrusted with it, the Act would be elusory, if he were not obliged to do Diligence, since none else could do it, and he might easily inform himself, at least once a year.  
It was also Debated, that by this Act the Clerk to the Notars was obliged to understand sufficiently the Office of Notary, though it was answered that he was no further obliged than to draw a Bill for their admission, and the Clerks of the Session are not obliged to understand the Civil Law, which they are obliged to Minute.  
Messenger's being grown too numerous, 
ACT 46.  therefore by this Act they are restricted to 200. comprehending the seventeen Heralds, Macers and Pursuivants in that number; which number is here divided amongst the Shires, but the number is now increased contrary to this Act, and to the great loss of the people.  
The Lion is Constituted by this Act sole Judge to the faults committed by Messengers, and to their Cautioners, whom they find for their good behaviour at their Entry; which power is Ratified by the 125 Act 12 Par. Ja. 6. And the Lion with his Brethren Heralds are declared Judges to all the Malversations of Messengers in their Offices by the 21 Act 3 Sess. 2 Par. Ch. 2. by which Act, though the Malversation of the Messenger be punishable by the Lion; yet he has not power thereby to determine upon the Damnages done to private parties by Messengers, and to determine against the Messenger or his Cautioner, for the sums for which the Messenger should have used Execution, albeit the Lion has private Ratifications from the Parliament, with this privilege, vide June 27. 1673. Heriot contra Corbet.  
BY this Act all Supersederies are discharged, 
ACT 47.  for Protections against Execution of the Law were so called then. This Act is renewed, 13 Act 23 Par. Ja. 6. By which the Granter is declared liable for the Debt, and by the 9 Act 3 Par. Ch. 2. These Acts are Ratified; and because the last Act related only to the Session, therefore the Privy Council, Session, Commissioners of Justiciary, and Exchequer, are declared liable, if they grant Protections, except to such as are Cited to answer before them; and so the Act protects not pursuers, for they are not Summoned; and if pursuers were protected, any man might raise a summons and thereby grant himself a Protection; but yet if the interest of the Commonwealth require that a Crime be prosecuted; I think they may after inquiry, secure the pursuer during the dependence; for though His Majesty's Advocate may pursue without an Informer, yet an Informer helps much.  
Albeit that Act Discharges the granting Protections, and makes the Granters liable; yet the Contemners of the Protection are punished; and a Writer to the Signet was Suspended in November 1678. for causing apprehend a person, notwithstanding of the Lords Protection; albeit it was there alleged, that though Protections might be granted by the Lords, upon depending Processes, yet these Protections could not extend to secure them against delivering of Papers, which are in their own power; and though a Protection granted by the King for Debt, does not secure against things that are in the Receivers own power, as Exhibition of Papers, etc. yet if either the King or the Lords grant expressly Protections against all Cases whatsoever, than it will secure even against such Exhibitions, until the same be expressly re-called, though it seems that by that Act, Judicatures have only power to grant Protections to such as are Cited before them, during the time wherein they may come and return to obey the Judicature, in cases wherein their personal presence is necessary for the Administration of Justice, not exceeding a month in all. It is also clear, that even the Defender may be apprehended, if he get not a Protection, for this Act does not protect, but is only a warrant for granting one. And there is lately an Act appointing Protections that pass under the King's Hand, to pass the Great Seal, per saltum.  
The Council to prevent the granting of Protections, whereby the private interest of the Subjects was so much destroyed, and the execution of Law eluded, did by an Act in January 1678. and signed by all of them, declare that whoever voted to any such Protections, should be liable to the Debt; to elide which, they thereafter changing the name of Protections, granted Licences to persons to stay in the Country free from all Execution, and therefore the King by His Letter in July 1679. did Discharge the Council to grant any Licences or Protections, except conform to these His Laws; and the 9 Act Par 3 Ch. 2. Ordains all such Licences, Protections, etc. to be signed, and the Signers to be liable, etc. It may be likewise doubted, whether the Commission of the Kirk can grant Protections, since there is only allowance by this Act granted to the Privy Council, Session, Exchequer and Justice Court, but since the 61 Act 1 Par. Ch. 2 Declares that the Acts, Decreets and Ordinances of that Commission shall have the strength of the Acts and Decreets of Parliament, they are really a Commission of Parliament: And therefore as the Parliament can grant Protections, so can they, especially since without this they cannot exerce well the Jurisdiction entrusted to them by the Parliament, and it seems inherent in all Courts, that they should be able to protect all whom they Cite; and it is clear by this Act, that the Supreme Courts of Scotland have power before this Act of Parliament to grant Protections: for this Act reserves only their former power, but grants them no new power.  
These Protections are thought the same with the induciae moratoriae, granted by the Civil Law l. 4. C. de precibus Imperator. etc. which are not valid by that Law, nisi idonea fideijussio super debiti solutione praebeatur. But I think these to be rather Suspensions, and that Cautioners in Suspensions with us arose from this.  

ACT 48.  THis Act anent Teinding of Corns is Explained fully in Act 73 Par. 6 Ja. 6.  

ACT 49.  BY this Act he who accuses another for Treason, and proves not, commits Treason.  
Observ. This is only in case of malicious accusation; for the Act says, That malicious accusers, etc. and therefore if the pursuer had probable grounds for his accusation, he seems not to incur the hazard of this Act.  
Observ. 2. That though the Act says, Whoever accuses; yet the King's Advocate runs no such hazard, for he accuses ratione officii; but to prevent this, he gets always in Treason a warrant from the King or Council, upon Reading the Depositions of the Witnesses, taken by way of Precognition, or else he has an Informer, who finds Caution to insist, sub poena talionis.  
Observ. 3. That the pursuer is only liable, if the party calumniat be called, accused, and acquit, therefore the Accuser repenting and not insisting, it seems that he will not be liable in this pain; but for not insisting, he will be only liable in the sum under which he has found Caution, and possibly in poenam arbitrariam, if malice appear; and yet it may be urged that he should be liable to the pain of Treason, since not insisting was the pursuers fault, and no man ought to have advantage by his own fault, nam qui dolo desiit p●ssidere pro possessore habetur.  
Dub●●atur, If this Act extends to such as pursue only Statutory Treason, and sure it does not, if they pursue not the same as Treason, though upon the event it may prove so.  
It may also be doubted if a Witness who has Deponed against a man in a previous Trial, as guilty of Treason, and thereafter Depons he knows nothing of it, commits Treason: for this wrongs the party as much as an accusation; yet if this Deposition was not emitted ultroneously, but on a Citation, it cannot be called an accusation, nor punished as such; but it seems punishable by Death, by l 1. in prin. ff. ad L. Cor. de falls.  
LAnded men Convict of Theft, Reiff, or Reset, commit Treason. 
ACT 50.   
It may be doubted if an appearand Heir be punishable in that case as a Landed man; or if a person once a Landed man, but denuded, be liable.  
Though Landed men may be thus punished as Traitors, yet they are ordinarily pursued for single Theft, and the King's Advocate does restrict his Libel to ordinary Theft. But because it may be punishable as Treason, therefore the Lords Advocate Thefts against Landed men, though the Libel bear only single Theft.  
THe murdering any person who is under the trust, power, or assurance of the slayer, commits Treason. 
ACT 51.   
Assurance is extended to such as we have invited to our house▪ or such as we are under trysting and capitulation with.  
This Act is likeways extended to Husbands killing Wives, Bairns, Servants, & e contra.  

ACT 52.  THis Act determining what is Usury, is explained in my Criminal Pract. Tit. Usury,  

ACT 54.  THis Act declares that such as exact other Customs from the people than what is warranted by express Law, or express warrant, or immemorial possession, shall be punished as oppressors.  
It is thought that possession for 40 years is equivalent to immemorial possession, and warrants such exactions, by prescriptions.  

ACT 55.  Ship's transporting Victual are confiscated, and the Masters and Clerks imprisonable during pleasure. This is now abrogated, for it is lawful to transport Corn even without a warrant from the Exchequer, except where the same is discharged by special Proclamation because of Dearth.  

ACT 58.  THis Act discharging the eating of Flesh in Lentron is in Desuetude, though till of late eating of Flesh was discharged without a previous warrant under the hand of the Clerks of the Privy Council.  

ACT 59  THis Act appointing the slayers of Deer, Cunnings, &. to be punished as Thiefs, is explained crim. pract. Tit. Theft, num. 15.  

ACT 60.  BEcause the people were oft times mistaken in executing their Brieves Legally, through the difference arising from several Jurisdictions, therefore some places are here appointed to prevent mistake, and a General is subjoined, appointing Brieves to be executed either at the head burgh's of Shires, or Stewartries, or where Brieves were most usually served.  
From which last words it may be observed, that Executions are sufficient, though they be not at the real head burgh's, if they be at the place where they used to be executed; and thus Executions at Dunce were sustained for the Shire of Berwick, though Greenlaw was really the head Burgh by the Erection; and Executions of a Warning were sustained though not at the right Paroch Church within which the Lands lay, since it was executed at the place at which Warnings used to be executed, 24 January, 1667. The Earl of Argile contra George Campbel; so far the presumption of habit and repute prevails even over truth.  

ACT 61.  BY this Act the granter of a Woodset is declared not to be prejudged by his negligence, though he suffer an Ecclesiastic quietly to intrude, and to continue long, yea even 100 years in the possession of Laic Patronages to which he has right, because during the none-redemption the Woodsetter did not look upon himself as Heretor.  
The reason of this Act has certainly been because Churchmen possessing per decennalen▪ & triennalem possess●onem prescrived a right, and the Act seems to imply, that because the granter of the Woodset was not valens agere whilst the Woodset stood, therefore his negligence should not prejudge him; but I conceive that Churchmen now prescriving a right by 40 years peaceable possession will exclude all the rights of Laic Heretors, as well when the Lands (to which the Laic Patronage is annexed) are Woodset as other ways.  
FOr understanding Ecclesiastical Pensions, it is fit to know, that of old when the present incumbent was sickly, 
ACT 62.  the Synods allowed him to resign his Benefice, reserving to himself a Pension or portion out of it, as is clear by Balsamon ad Synodum Ephesinam; but thereafter the Pope having reserved to himself the power of burdening Benefices with Penesions, men did by Simony impetrat from the See of Rome immoderate and causeless Pensions, though it was pretended that there could regularly no Pension be granted but for one of three reasons: 1. The favour of the resigner of a Benefice, that he might after the resignation live suitably to the Character he once bore. 2. That when two Benefices were excambed, the greater Benefice might be burdened with a Pension in favours of the lesser. 3. When there was any debate concerning the Benefice, it was lawful to burden the same with a Pension. But notwithstanding of this, Pensions increased so far as to be complained of as a Harvest without Sowing; and our Law did take very much pains to lessen Pensions, and by the 1 Act of K. Ja. 1. his first Parliament, in the Black Acts which is not now reprinted, the King reserved to himself the cognition of Pensions obtained at Rome. And by the 4 Act of the 1 Par. K. Ja. 3. it is appointed that no Pension be purchased out of any Benefice without consent of the possessor, which was very just in itself, and was made to exclude the Pope's power, who pretended that he could Arbitrarily impose any Pension he pleased, as is clear by Gigas de pensionibus Ecclesiasticis, Quaest 4. By this Act it is declared that the principal gift of Pension being improven, all Confirmations and Decreets following thereon shall fall in consequence. By the 29 Act of this Parliament it is likewise appointed that Pensions shall not be prejudged by the Act of Annexation, they being lawfully authorised by Decreets, or Possession, and therefore by the 137 Act, Par. 12. Ja. 6. It is ordained that all Pensions not authorized by Decreet, or Possession in the life-time of the Prelate, alleged disponer thereof, shall be null; and by the Canon Law Pensions imposed upon Benefices of Cure, extinguuntur morte gravantis; but the reason given by this Act is, because such Pensions not so confirmed in the granters life-time, are null of the Law, and may be presumed to be false. Another reason that may be given is, because the Incumbent having no power over the Benefice but during his life, it were unjust that any burden granted by him should last longer than his life, and if it lasted longer it would prejudge very much the care of Souls, because the burden of a Pension would discourage the Intrant; and the reason why it is presumed to be forged is because it is very probable that if it had been a true Pension it had been owned during the life-time of the granter. By the 207 Act, Par. 14. Ja. 6. all Pensions and Dispositions out of the Temporalities of vacant Benefices since the Act of Annexation, are declared to be null, which shows that Pensions were never considered as solid and unquarrellable rights.  

ACT 63.  OBserv. 1. Though this Act appoints the Exchequer to sit till the last of August, yet it sits sometimes no longer than the last of July; and it being doubted whether the King could notwithstanding of this Act of Parliament ordain the Exchequer Counts to begin upon the first of March; it was resolved that could not be done, because by this Act of Parliament the not Counting till the first of July, was introduced in favours of the Subjects, who are by this Act liable to no Compt till July, and so the King could not anticipat the obligation, by making them Compt in March, this being rather matter of Property than of Government.  
Observ. 2. That Denunciations at the Mercat Cross of Edinburgh against such as do not Compt in Exchequer, they being thereto liable, are equivalent, as if the Denunciation had been at the Head Burgh of the Shire; but yet I conceive Escheats would not fall upon such Denunciations, because no Escheats fall by Denunciations upon general Letters; but it is alleged that Escheats may now fall upon such Denunciattons by the 15 Act 3 Ses. Par. 1. Ch. 2. where this Act is renewed, and such Denunciations are there declared to be equivalent to Charges and Denunciations personally, and at their dwelling house, and head Burgh of the Shire, and that as to all intents and purposes; and by that Act such Letters and Executions may be Registrated either in the general Register of Hornings, or in the Thesaurers' Register, albeit generally all Letters of Horning ought to be Registrated in the particular Register of the Shire, Act 75 Par. 6. Ja. 6. or in the general Register.  

ACT 64.  THis Act is explained in the 77 Act 6 Par. Ja. 5.  

ACT 65.  EXecution by this Act may pass at the King's instance against High. lander and Borderers, ubi non patet tutus accessus, upon Citation at the Head Burgh of the next quiet Shire.  
Though this Act was only in favours of Executions at the King's instance, which seems to be a privilege ob bonum publicum, yet by a late custom Dispensations are granted upon common Bills by the Lords, to cite at any man's instance, though it was not proven that there was not tutus accessus, and therefore the Lords did by Act of Sederunt discharge the granting of such privileges upon common Bills, and ordained that something should be adduced for proving that there was not tutus accessus, and that such warrants should only be granted in praesentia, 29 June, 1666, Mepherson against Mccleud. Per clem. 1. de Judic. & clem. 1. the sor. compet. citatio potest fieri per edictum ubi locus non est securus, vid. Marant. de jud. part. 6. num. 84. where he observes well that these edictal citations being so prejudicial, cannot be granted by inferior Judges; and thus if any person be to be cited, as out of the Country, at the Peer of Leith, this cannot be done before inferior Courts, without Letters of Supplement from the Lords.  
BY this Act the controller is liable for the Chamberlains whom himself nominats, 
ACT 67.  but he is only liable for diligence against heritable Chamberlains, because he names them not. The Thesaurer is liable in the same manner as the controller was, though the Thesaurer be not here named, because the Thesaurer is now in place of the controller. But it may be doubted if a person who is repute solvent, and was really so, were nominated, a Chamberlain proving afterwards insolvent, will make the Thesaurer liable.  
BY this Act Rentals set by the King, not bearing Heirs, are not extended to Heirs, but resolve in naked Liferents, 
ACT 68  though regularly qui sibi providet & haeredibus providisse videtur.  
Nota, That our Law has thought that this needed an Act of Parliament; and therefore in other cases, where there is no Statute it would seem that Rights granted to a man, should regularly extend to his Heirs, arg. hujus legis.  
Observ. 1. Though this Act mention only Rentals set by the King, yet the Rentals set by Subjects, are not extended to Heirs, except Heirs be therein-mentioned; and though a Rental mention Heirs indefinitely, yet it will only extend to the first Heir, and will neither be accounted null for want of an Is, nor be extended to all Heirs, for than it would be equivalent to an heritable Right.  
THis Act Discharges the Disponing of the King's Casualties in great, as the Casualties of a whole Country, 
ACT 69.  which is most reasonable; and therefore all Gifts of Regalities may be quarrelled as null, because in them all the Escheats are Disponed; and though this Act Discharges the giving away of Casualties arising from any one Crime, yet this Objection was Repelled against the Gift of Usury in which were given away all the profits arising to the King by Usury.  
ALL pecunial pains are ordained to be taken up according to the rate the Money gave when the Fine was imposed, 
ACT 70.  or else the Fine is to be augmented, according to the augmentation of the Money; and this Act was reasonable, because it was not just that Delinquents should get advantage by not payment; and it was necessary, because without this Act, Fines, as all other Debts, might be paid according to the current Money, at the time the same fell due.  

ACT 71.  THe pain of negligent Sheriff-Clerks is tinsel of their Movables, and the principal Sheriffs are to pay 100 pounds for them, besides the damnages of parties.  
Observ. 1. That in the time of this Act, Sheriffs had the nomination of their own Clerks; but now since the Sheriff-Clerks are nominated by, and depend upon the Secretary, it is not just that the Sheriff should be Fineable for the fault of the Clerk.  
Observ. 2. That though by this Act the Sheriff-Clerk is obliged to send an Inventar of all the Registrat Hornings yearly to the Thesaurer, yet this is in Desuetude.  

ACT 72.  THis Act is in Desuetude as to the price to be taken by Messengers, but they still find Caution to the Lion at their admission, de fideli administratione.  

ACT 73.  RElief is a Duty due by the Vassal to the Superior at his Entry, for relieving his Fee out of the Superiors hands. By this Act it is appointed, that when this Casualty arises to the King, it may not be compounded for, but that all that is due be taken; and the true avail is a years Retour-duty in Ward-lands, and the double of the Feu-duty in Feu-lands.  
Hope tells us, that though a Gift of Nonentry contain the Relief, yet the Donatar will not have Right thereto, because such is the Custom of Exchequer, as he says; But I think that the true reason is, because this Act Discharges this Casualty to be gifted. When ere the Vassal takes out a Precept from the Exchequer, for Infesting himself, he is liable for the Relief; and the Sheriff may be Charged therefore, conform to the Respond Book: or the party may be Summarily Charged for it by this Act, and the ground may be also poinded for it, as de●itum fundi, when a party gets a Precept, the Servants of the Chancery write down respondebit Vicecomes de, &c▪ or Respondebit any Judge to whom the Precept is direct, and that is called the Respond here mentioned, by which Responde-book, the Sheriffs and their Deputes are Charged yearly in Exchequer.  
BY this Act the Sheriff did count for all Escheats yearly, for than he might have intrometted summarily, 
ACT 74.  and had Letters of Intromission; but now he is not countable, nor obliged to intromet, but the Escheats are gifted to Donatars.  
BY this Act all Commissions for judging Crimes, 
ACT 75.  are ordained to pass the Quarter-Seal: but now Commissions are granted by the Council without any Seal; and though this Act Discharges justly the granting Commissions for judging Slaughter, ordaining that Crime to be Judged only by the Justices; yet now the Council uses to grant Commissions even for Judging Slaughter, Murder, Witchcraft, and all such Crimes. But though the Council may grant such Commissions for Judging these Crimes, when they fall in under general Commissions, that are granted by the Council; yet I see not how they can grant Commissions contrary to this Act, for Judging Slaughter in special.  
Observ. 2. That all Commissions of the Justiciary should be under the Quarter-seal, to the end as this Act of Parliament observes, there may be a Respond made thereupon; and yet the Council now uses to grant Commissions, which have no other warrant but a Paper subscriv'd by themselves, and not by way of Signature, as is here ordained, and the great fault that is committed in granting these Commissions, is that the Process is never ordained to be returned to the Justice-Clerk, to the end that both it may be known, whether the Processes be legal, and that it may be known what is due to the King, for which the Respond mentioned in this Act was to be made, vid. observe. on 126 Act Par. 12 Ja. 6.  
Observ. 3. From these words of the Act, That no Commission be granted to proceed in Slaughter, but that the Justice-general and his Deputs proceed thereupon. It uses to be urged that a Council of War cannot be a sufficient Warrant for Soldiers to Judge Murders, and other Crimes committed by any of their Number against Countrymen, these not being Military Crimes, but being Crimes that should be tried by our fundamental Law in the Justice-Court, where the people have a double security, both by Learned Judges, and an Inquest of Neighbours, and a King's Advocate to be careful of the probation; and it may as well be pretended that they may Judge their own Soldiers in civil Cases; and that they may judge a Country man when he kills a Soldier, Vid. Crim. pract. Tit. Jurisdiction of Justices over Soldiers; and the Council ordained Burr a Drummer to be delivered up to the Justice Court for killing a Woman, though he had suffered two Councils of War, November 3. 1681. But to clear this, the King by His Letter to the Council, has declared that Soldiers are only to be be Tried for Military Crimes by a Counsel of War, and that for ordinary Crimes they shall be judged by the Justices, etc.  

ACT 76.  AS parties may pursue Crimes without concourse of the King's Advocate; so by this Act the King may pursue without an Informer, ad vindictam publicam.  

ACT 78.  THis Act ordains that no Rests be allowed to the Thesaurer exceeding 20000 pounds a year, but that he shall count for what is above this sum, so that he may do Diligence therefore as accords, but this is not observed.  
The second part of this Act ordains that the King be not prejudged by general Ratifications in Parliament; for though Ratifications cannot prejudge third parties; yet they might have prejudged the King who past them, if His Majesty's Interest had not been secured by this Act.  
THough this Act Discharges all continuation of Justice-Courts, and Ordains the Justices to proceed, 
ACT 79.  notwithstanding of such precepts; yet both King and Council use to Command the Justices to continue their Diets, though this Act was objected in the Process for William Halyburton's Murder, June 1676. But it is necessary that in such Cases the King should be informed by the Justices, what is to be said on both sides, before they continue such Diets in Process, at the instance of private parties, for the King and the party having different Interests, and it being declared by Act of Parliament, that the party may pursue without the King. It seems very reasonable that the party's Process should not be stopped upon surreptitious Warrants, without acquainting the King.  
I find in the Council Register, July 1582 That because His Majesty had been troubled by the importunity of such as desired not to be Tried before the Justice-airs, but at particular Diets, whereby they eschewed ordinarily all punishment; that therefore His Majesty does in Council, Statute and Ordain (this is oftimes the Style in Acts of Council, as well as in Acts of Parliament) That the Justices shall proceed, without respect to such Warrants; and it seems that that Act of Council has given occasion to this Act of Parliament; and generally many Acts of Parliament have been at first Acts of Council, which shows likewise what power the King has in His Council of this Nation.  

ACT 80.  THis Act appointing that Sheriffs should yearly give in the Names of their Deputs and Clerks to the Lords of Session, and find Caution in the Books of Council, is in Desuetude, as to both the parts, for they neither find Caution, nor give in the Names of their Deputs; But de jure, I think Letters of Horning may be direct upon this Act for both effects, it being most reasonable that the Lords of Session should know whether the Deputs be able, and this Caution would keep them in awe and secure the people, if they do injustice. The Caution required by this Act is Burgesses, Indwellers in Edinburgh Caution Burgeoise, as the French call the best Caution.  
BY this Act the form of holding Justice-airs is set down, but it is to be found more fully in the Iter justiciarii, 
ACT 81.  and upon the word Justice-air, de verb. signif. and so needs not be repeated; but there are some things fit to be observed, because innovated.  
Observ. 1. That Commissions of Justiciary are to be under the Testimonial of the Great-Seal by this Act, but now they are always under the Great-Seal, when granted by the King; but seldom or never under the Quarter-Seal, which is called the Testimonial of the Great-Seat, and when they are granted by the Council, they are only Signed by a Quorum, but under no Seal.  
Observ. 2. That albeit the Stevartries or Bailliries be here appointed to come to the head Burrows of the Shire, where Dittay is to be taken up; yet it has been found, that the Council may ordain them to come to other places for the public conveniency, when the Diets are so short that the Justice Clerk cannot stay at every Shire, and thus the Constabulary of Hadingtoun was ordained to give up Dittay at Edinburgh.  
Observe. 3. That albeit by the old Form, Panels were to be Cited to Justice-airs upon forty days Iter. Just. num. 6. Yet now they use to Cite upon fifteen or more days, and then as now, they are not Cited peremptorly to one day, as in ordinary Justice-Courts, but to any one of the days in which the Court is to sit in that place, to which they are cited, and all the Panels are called every day at that place, and if they compear at any one of the days, they are not declared Fugitives.  
At the first day of Justice-airs, all who are called must find Caution to appear at all the Diets of the Justice-airs, which some complain of. Albeit by the form of our old Brieve, and the constant Practic, only Millers, Brewers, Smiths, and Officers of Courts were cited to give up Dittay upon Oath, because it was presumed that the best intelligence is to be had from such public persons; yet the Councils did lately ordain that Noblemen and Gentlemen should likewise be obliged to give up Dittay, because the Crime being Treason, and art and part thereof; It was presumed that they should understand the same better than mean people; and for detecting of so great a Crime, persons of all qualities should concur; and the former Custom was not exclusive of calling persons of quality. Likeas by the 94. Act Par. 13 Ja. 3. The King is to call the Lords and Headmen of the parts of His Realm, and to take Dittay of them (id est by them) of notour Trespassers.  

ACT 82.  BY this Act Hoghers or Slayers of Horse, destroyers of Plough-Graith, Growing Corns, etc. are punished as Thiefs to the Death, Vid. crim. pract. Tit. Theft.  
Observ. 1. That this Act proves Theft to be Capital by our Law, though we have no express Law for making Theft Capital generally.  
Observ. 2. That it may well be doubted, whether cutting of Corn, etc. in Landed-men is Treason, since it would seem to be so; for by this Act it is declared punishable as Theft, and Theft in Landed-men is by the 50 Act of this Parliament declared to be Treason; but yet I conceive that these Statutory Thefts are not punishable as Treason, since that were but fictio fictionis & duae fictiones non cadunt in idem subjectum. Likeas the punishment is dedetermined here to be the punishment of simple Theft, viz. Death, whereas if the Law had designed Forfalture, it would have named Forfalture here, as in the former Act. It has been doubted upon this Act, whether the cutting of Corns Sown by a Strang●●▪ who had no right, was a Crime in the Heretor, who may pretend that satum cedit solo; and it is thought that if the Heretor suffered a Stranger to possess for any considerable time, he could not have cut them down summarily, no more than he could have removed that Stranger summarily from his Possession, though unjust.  

ACTS 83, 84.  THese Acts are Explained crim. pract. Tit. Deforcement, Vid. Act 150 Par. 12 Ja. 6. and Statut. Will. cap. 4. v. 5.  

ACT 85.  IT appears by this Act, that Letters of Lawburrows were of old granted by several Clerks; and by this all Caution for Lawburrows is ordained to be found to the Justice-Clerk, which was indeed most reasonable, because bodily harm is there dreaded, and the preventing of that should belong to the Justice-Court; but now the Council, Session, and Criminal Court have the power of causing parties find Caution for Lawburrows, but the Act in so far as it discharges Lawburrows to be granted against Complices in the general, is yet in observance, and very justly, for it was not fit to leave it arbitrary to the parties to charge any they pleased.  

ACT 86.  THough this Act appoints all Courts to be Fenced at eleven of of the Clock in the forenoon, yet it does not irritat and annul all Courts holden at any other hour, and Courts are ordinarily held at other hours, but it may be doubted, whether a party cited to a peremptory Diet, and staying till twelve of the Clock, and taking Instruments thereon, could be unlawed in the afternoon, for absence; but if the Court once sit, parties are obliged to attend.  
THough this Act appoints the Expenses of parties accused and acquitted to be modified by the Justice-Clerk and his Deputs, 
ACT 87.  yet they are now only modifiable in full Court by the Justices: but it is doubted, whether the Justices can modify Expenses, where the Defenders are absent, since the only Certification against absents, is that they shall be Denunc'd Rebels; But yet the modifying Expenses, seems to be the necessary result of all Processes, and that inest officio judicis; It is also doubted, whether the Justices can ex intervallo, modify Expenses, none having been sought the time that the Letters were brought back, and the party declared Fugitive, and the Justices are in use to do both, but the case has not been yet fully Debated.  
BY this Act the Roll of Assizers was to be given by the party accuser, or a Notar in his name; 
ACT 88  but now by the third Article of the Regulations, for the Justice-court, the Assizers are named, and the List subscriv'd by the Justices, for it was thought too severe that the King's Advocate, or the party accuser should have the naming of the Assizers.  
BY this Act Customers passing Customable Goods for Gratitude, are to be Tried Criminally, 
ACT 89.  and their Movables to be Escheated in case they be convicted.  
Observ. 2. That the King's Servants are only to be punished in case they transgress for Money, so that negligence is not punishable except it be gross; but yet if Customers should wittingly and willingly pass Goods for Friends or Relations, I think it would be punishable by a Fine: And since the stealing of Customs is Theft, this connivance in strict Law seems a Theft-bute, or accession to theft.  
Observ. 2. Though this Act declares this accession punishable in a Justice-air, yet the Exchequer and Council do also punish the same by arbitrary punishments.  
THis Act is Explained fully crim. pract. tit. Assizes; but it is fit to add that His Majesty having written a Letter in anno 1683. desiring the Justices to Examine Witnesses in Treason, 
ACT 90.  when the Council required them, at any time before insisting in the Process, to the end His Majesty's Advocate might know how to Libel, and to prevent the absolving of Rebels, who were truly guilty by the mistake of citing the wrong Witnesses; it was alleged that the desire of that Letter was contrary to this Act, ordaining all probation to be received only in presence of the Panel.  
2. That this would engage Witnesses to adhere to the Depositions that might be Elicited from them by the too great zeal of His Majesty's Servants, or the influence of others. To which it was answered, that as to the first, the Depositions to be taken in that previous Trial, were not to be made use of to the Assize, which was all that was discharged by this Statute.  
As to the second, It was not to be imagined that the Judges, to whom only this was to be entrusted, would prejudge any Panel, or be corrupted by any influence; and before the Witnesses deponed these Depositions should be destroyed, so that the Witnesses could be under no apprehensions upon that account, and the people were in a better condition by this Letter than formerly, for it was securer to trust previous examinations to the Judges than to the King's Advocate who did always Examine alone formerly, and this would prevent unjust trouble, when there were no Witnesses who could Depone against the persons accused through error or malice.  
THis Act is also Explained in the Title Assizes: But it is fit to add that Blair and others being Convict of Error for assoilyying some Traitors wrongously, 
ACT 91.  and their Escheats being gifted, they raised a Reduction of the Gift, as founded upon a Verdict that was null by this Act, in so far as the King's Advocate had spoke with the Assyzers after they were enclosed, which reason was repelled, because the Justices had declared that the Advocate had only spoke to the Assyzers in their presence, when the Assyzers were desiring to be solved of some doubts which was ordinary and allowable, December 21. 1682.  
It may be also doubted whether such Verdicts can be reduceable, for though the Act declare that the Assizers may assoilye, if any speak to them, yet if they and the Justices proceed, it seems not quarrellable, or at least before the Session; for I remember that the Justices having declared a Bond of Glenkindies forefaulted, for not producing some Witnesses against himself; the Lords declared that the Justice-court being a Supreme Court, their Acts and Sentences were not quarrellable before the Session, Queritur, if both these may not be quarrelled before the Parliament; and I think they can not, except the Decreets of the Session can.  

ACT 92.  THis and the following Acts to the end of this Parliament were made for quieting the Borders and Highlands, as to which the same courses are to be taken, though now the Borders are Governed by a Commission of both Kingdoms, so they are not put to find Caution as they were by these Acts; but the Acts here set down are generally observed as to the Highlands still, except in so far as I shall here observe upon the respective Acts.  
Observ. 1. Though this Act appoints that the first day of every Month shall be appointed for hearing Complaints concerning the Borders and Highlands, yet that is in Desuetude as to both.  
Observ. 2. That, that part of the Act ordaining a special Register to be made for Borders and Highlands, is in observance, quoad the Highlands by a late Act of His Majesty's Privy Council.  
BY this Act all the Lands-lords contained in this Roll, are ordained to find Caution, 
ACT 93.  which Roll is subjoined to the Acts of this Parliament, but that Roll is now very much altered, for many others are now ordained to find Caution, who are not therein specified; but are now in the Proclamations of Council, March 17. 1681. etc. because the Heretors mentioned in the Acts of Parliament, are often extinct, and the Lands for which they were to be bound, are disponed to others. And whereas by these Acts, these Landlords and Chiefs of Clans were ordained to produce their Delinquents before the Justice or his Deputs, they are now to produce them before the Council, or else to pay the Debt, which are great arguments to prove that in matters of Government de facto we consider more the Reason, than the Letter of the Law.  
Though this and the 103 Act of this Parliament, which is coincident with this may seem severe, because the innocent is bound for the guilty, yet necessity and public interest has introduced these Laws by the same reason that in England the Paroch is liable for the Robberies committed therein betwixt Sun and Sun, and thus these who have power of Jurisdiction from the Emperor, are liable, vias publicas a latronibus purgare Gail▪ observ. 64. lib. 2. vid. etiam, l. 3. l. congruit, ult. ff. de officio Praesidis.  
It has been doubted whether the Council could in other cases not warranted by express Acts of Parliament oblige the Subjects to give Bond to live peaceably conform to Law, and particulary that their Tenants should not keep Conventicles, but should go to Church, and pay 50 pound Sterling for every Conventicle kept upon their Ground, or should present their Delinquents; and it was alleged that the Council cannot, because regularly one man is not liable for another man's Crime, nor can this inversion of Property and Natural Liberty be introduced by a less power than a Parliament, nor had Acts of Parliament in this case been necessary, if the King and Council could have done the same by their own authority; but yet since the King has by express Act of Parliament the same power here that any Prince or Potentat has in any other Kingdoms, and that Government belongs to him as Property does to us, nor can the peace be secured otherways than by allowing him to take all courses for securing the peace, and preventing disorders, that therefore this joined with the practice of the Council is a sufficient warrant for exacting such Bonds, the practice of our King and Council being the best interpreter of the prerogative, especially where the things for which Band is to be taken, are not contrary to express Law; and it is employed in the nature of alledgiance that Landlords should entertain none but such as will live regularly, and if they transgressed, the Master could not in common Law thereafter receipt them without being liable, as we see in Spuilyies; or if the King pleased he might denounce the transgressor's Rebels, and so might put the Master in mala fide, and though there be no such particular Laws warranding the taking of such Bonds, yet it will appear by many instances in this Book, that Laws are extended de casu in casum, and thus this power seems inherent in the Crown; likeas the matter of Property is sufficiently secured by the alternative foresaid, of either presenting or paying the damnage, which alternative seems to be founded upon the same principle of justice, with actiones noxales mentioned in the Civil Law, Domino damnato permittitur aut litis aestimationem sufferre aut ipsum servum noxae dedere, vid. Tit. 8. lib. 4. Institut. I find many instances in the Registers of Council, wherein the Subjects are charged to secure the peace, under the pain of Treason, as in the case of the Lord Yester.  
BOnds given by Cautioners for broken men, do oblige the Heirs and Successors of the Cautioners, 
ACT 98.  though they be not mentioned in the Band.  
Observ. 1. In Law he who obligeth himself to pay a Sum, obligeth his Heirs; for as in Law qui sibi providet & haeredibus providet sic qui se obligat & haeredes obligat, and therefore a man having bound himself and his Heirs Male, it was found that the Creditor was not thereby excluded from pursuing the Heirs Female, or any other Heirs, but that he was only bound to discuss first the Heirs who were specially named in the Obligation, 18 February, 1663. Blair contra Anderson; but yet Obligations for performing a deed, such as to present a Thief, are of their own nature personal, and therefore this Act was necessary.  
THe taking of Surety from Chief of Clanns doth not lose the Obligation taken from Landlords, 
ACT 99  & e contra, and the reason why this Act seemed necessary, was, because this seemed to be an Innovation, and it seemed not just that both the Chiefs and Landlords should be liable, since they could not both have absolute command over the person to be presented; but yet this Act was most suitable to Law, since novatio non praesumitur nisi ubi hoc expresse actum est, l. ult. Cod. de Nou. And the Tenants in the Highlands are influenced both by Chiefs and Landlords; but to make this Law more just, the Council gives action of a relief against the Landlord, if the Landlord harbour, or to the Landlord against the Chief, if the Chief receipt him.  
BY this Act if Goods be taken away by any Clanned man and receipt in the Country of their Chief, for the space of 12 hours to his knowledge, 
ACT 100  the Chief shall be liable in solidum for all the Goods taken away, though there were but very few of his men present, as was found in a case pursued by Francis Irwing against Glenurchie before the Council; all such Chiefs being liable in solidum, and not pro ratâ only for the wrongs committed by their Clanns.  
BY this Act no Magistrate may keep a Thief, 
ACT 101.  or Malefactor in Arms with him, albeit he pretend he is his Prisoner, but he must de●ain him in a closely house, both because squalor carceris is a part of the punishment due to Malefactors, and because if this were allowed, Magistrates might by collusion suffer Malefactors to enjoy their liberty.  
IS explained Crim. pr. tit. Theft. 
ACT 102.   
THis Act ordaining Masters to present their Tenants upon the Kings closely Valentine's (or Orders in little Papers like Valentines) is observed in the whole Registers of Council. 
ACT 103.   
THese two Acts discharging the Borderers of Scotland to marry with the Borderers of England, or to labour their Lands, 
ACT 104, 105  are abrogated by the Union.  
BY this Act the Landlord doing diligence by obtaining Decreet of removing, using Horning, 
ACT 107.  and doing all other things that was in his power after the fact comes to his knowledge, is no further liable.  
Nota, By this Act the Landlord must be put in mala fide by intimation of his Tenants' Crime. 2. Dubitatur whether this privilege should not likewise extend to Chiefs of Clanns, since they have less interest in the Delinquents than the Landlords.  
BY the 100 Act of this Parliament, such as committed Slaughter, Mutilation, or other hurt upon Thiefs, are not liable: 
ACT 108.  But by this Act an Indemnity is likewise granted to such as raise fire against them, that being there forgot.  
THis Act is explained in the Observations upon the 29 Act of this same Parliament. 
ACT 110.   
BY this Act the Burrows pay the sixth part of the Impositions of Scotland, which is yet in observance, 
ACT 111.  and because of this burden they have the only privilege of Trading, and therefore they justly pretended that their privilege of Trading could not be communicable to the burgh's of Barony and Regality, who bore no part in this burden.  
Nota, That though by this Act the Taxation of the Burrows is not to be altered, that is only meant of the 6 part which is to be born by the Burrows in general; for notwithstanding of this Act the Convention of Burrows do alter the Taxation of any particular Burgh according as the number of burgh's increaseth, or according as any particular Burgh grows unable; and they divide this sixth part amongst themselves according to the total of 100 pound Scots, which is the imaginary Standard or Assis, and each Burgh pay accordingly, some being valued at 6 ss. some at 12 ss. etc. And if any Burgh resign its privileges, they must also resign in favours of the burgh's Royal their common Good, after which Resignation, and not otherways, their proportion is divided amongst the rest; for it were unjust that they should retain their common Good which was to pay the proportion of public burden, and yet be free from the burden itself.  

ACT 112.  BY this Act a Burgh selling any part of their freedom without consent of his Highness and his three Estates, loses their whole freedom.  
Observ. 1. That the reason given by this Act is, because they as Vassals cannot sell without consent of the King their Superior, and so this seems to be a kind of recognition, and it would have appeared reasonable that therefore the King's consent might have seemed sufficient, because he is only Superior; but the reason why by this Act the Parliaments consent is declared necessary, seems to be, because Burghs-Royal bears a part of the Taxation of the Kingdom, and so alienating any part of their freedom, they seem to lessen the subject-matter out of which the Taxation is paid.  
Obseev. 2. It may be doubted whether a posterior Confirmation or Ratification by the Parliament will be a sufficient consent.  
Obsrru. 3. That Magistrates and Council cannot alienat the privileges of a Burgh, and therefore Alienations made by them would not infer this forfeiture or recognition, and therefore all the Inhabitants behoved to be cited by Touck of Drum to such Alienations as they were per sonitum Campanae, in the Civil Law, tit. Cod. de venditione Bon. Civit.  

ACT 113.  BY this Act the Parliament having referred to the King to determine who should represent the Barons (which shows what great deference our Predecessors had to their King) His Majesty determines that none but such free Barons as are Freeholders', holding of the King, and residing within the Shire, shall represent the Shire; but by an Act of Parliamant, 1669. It was declared that such as are free Barons might elect or be elected, though they were not actual Residenters, and that notwithstanding of this Act which is thereby abrogated as to that point, and most reasonably, for their interest in the Shire ceases not by their not residence; and conform to this Act the Convention decided in all Elections, June 1678.  
Nota, All Elections are to be subscrived by six Barons at least, and though in controverted Elections these who have six will be preferred to these who have five, and if neither of the Competitions have six, a new Election will be ordered, because both are unlawful; yet if all the Barons were cited, and fewer than five were only present, a Commission by these five may seem sufficient, because the absence of Barons should not prejudge the Shire; yet in the Convention 1678. many inclined to think that a new Election should be ordered in that case, because of this Act, and that that Shire ought not to have a Vote who would not send legal Commissions.  
Though by this Act the Missives for calling Parliaments or Conventions (which are here called General Councils) should be directed to such as were the last Commissioners, in place of the Sheriffs, yet now they are ordinarily directed to the Sheriffs, and sometimes to any the King pleases, as in the Parliament, 1661.  
By this Act the Commissioners are to be choosed at Michaelmass Head Court, and failing thereof at any other time the Freeholders' meet, or when his Majesty requires them; and therefore it may be doubted if every Shire are obliged to choose at Michaelmass, since that seems to be ordered here, and the other diets are only ordered to be failing of that Head Court: But yet many Shires in Scotland use not to choose at Michaelmass, but delay Elections till they be required.  
Though by this Act the names of such as are elected are ordained to be notified in Writ to the Director of the Chancery by the Commissioners of the last year, yet that is not now in observance, since his Majesty uses no more to call Parliaments and Conventions by Precepts out of the Chancery, but by general Proclamations.  
It is to be remembered that where there are Elections at Michaelmass, the Shire cannot choose of new, as was found in the Convention 1678. in the case of the Shire of Perth, and ordinarily the Proclamations bear as it did there, that the Shire should choose where they had not formerly chosen at Michaelmass, and so these Elections were made without warrant; but it may be doubted whether such Elections would be invalid if the Proclamations mentioned nothing, as to this point it was there alleged that the Shire might make a new Election, because the Commissioners then chosen were denuded, and were become no Barons; to which it was answered, that this should have been represented to the Council, who would have ordered a new Election, but the Shire could not proceed to elect by their own Authority contrary to the Proclamation.  
THough this Act has adjusted the Weights and Measures of the whole Nation, 
ACT 114.  and ordained the Linlithgow Furlot to be the Standart as to that measure; yet it is expressly provided by this Act that if any persons be founded by Infestment, Tack, or Contract, in a different Measure, that Measure contained in their private Right should stand, but should be proportioned to the Linlithgow Measure, without prejudice to either Party, that is to say, they should have right to the old Measure fully, but it should be paid according to the new Measures; as for instance, the Boll of Galloway being six Furlots, the Master should have six Furlots paid in to him, which exception was most just, because of the intrinsic value of the Lands to which the old Tacks, etc. were proportioned, but yet the Lords sustained in Milns a Moulter, though much greater than the ordinary fourth part of a Peek, because of constant possession, and found that this Act did not extend to Milns, since therein different Measures are used according to the proportion of the service, nor was this Act ever observed in any part of Scotland as to Milns.  
In Conjunct-fees and Life-rents also, the Husband being obliged to provide the Wife to particular Lands, which he obliges himself to make worth so many Chalders of Victual, it has been found that he is obliged to make them worth so many Chalders, according to the measure of the Country where the Land lies, because his own Rent is so paid; and Ministers in Galloway, and other places where great Measures are used, will get their Stipends according to these Measures; the reason of all which I conceive to be, that these measures were made greater at first, because of the insufficiency of the Victual of these Countries, and so the greatness of the Measure does only equal the intrinsic value.  
This Act having fallen in Desuetude as to the Linlithgow Measure, is again renewed by the 16 Act, Par. 23 Ja. 6. And many wish that Corn were now sold by the weight, and not by measure, weight being the only sure rule of the intrinsic worth of Corn; but this being proponed in the Par. 1681. the overture was rejected by a Vote. Vide observe. on Act 96 Par. 6. K. Ja. 4. supra.   

King James the sixth, Parliament 12.  
FOr understanding this Act it is fit to know that upon the 22 of May 1592. 
ACT 114.  The Presbyterian party taking advantage of the Kings being engaged against Bothwel▪ and in other difficulties, they held a General Assembly at Edinburgh, wherein they drew up several Articles to be presented to the King and Parliament, whereof Spotswood names only four: 1. That the Acts 1584. against the Discipline of the Church, should be abrogated, and the present Discipline established. 2. That the Act of Annexation should be abrogated, and the Patrimony of the Church restored. 3. That Abbots and Priors, etc. nor none having Commission from them should Vote in Parliament, as Representing the Church. 4. That the Land should be purged of Blood.  
The King rejected the second and third, but in compliance with the first Article he did, because of his present difficulties, as Spotswood observes, allow the present Church Discipline by General Assemblies, Synods, and Presbyteries; but yet he does not here expressly abrogat Episcopacy, only the Presentations are not ordained to be directed to them, but to Presbyteries; which Presentations are again restored to Archbishops and Bishops by the 1 Act Par. 21 Ja. 6. And Spotswood tells us, that severals of the Bishops possessed even then by their Titulars.  
Episcopacy war again restored, so that the Bishops did sit in Parliament, by the 231 Act Par. 15 Ja. 6. but they were not fully restored to their Spiritual Jurisdiction, till the 2 Act 18 Par. Ja. 6. but in that Act, this Act is not abrogated, as it would certainly have been, if this Act had abrogated Episcopacy; but this Act is abrogated by the Act 1 Par. 21 Ja. 6.  
By this Act the Collation and Deprivation of Ministers is declared to belong to the Church jure divino; but these words, or any siklike essential Censures, having warrant from the Word of God, are too general and may be abused.  
This Act is now abrogated totally in all its Heads, Clauses and Articles, by the 1 Act 2 Sess. Par. 1 Ch. 2. which seems too general; for though this Act establishes Presbytery, yet there are many Clauses in it in favours of the Protestant Religion, and to which no answer can be made, but that, what this Act has established in favours of the Protestant Religion, was formerly established by other Acts, but the truth is, these Acts are not so full as this.  
Petty in his History tells us, that by the seventh Article of the foresaid Assembly, 
ACT 115.  it was desired that Tacks set by the Deposed Ministers should not stand: But by this Act it is only declared that when Ministers are deprived, their deprivation excludes them, tam ab officio quam beneficio, which has been doubted, because Suspensions are only ab officio.  
By this Act though the persons be deprived, yet it is declared that their deprivation shall not be prejudicial to Tacks lawfully set by them before their deprivation, and the Lords do expone the word lawfully so, as to extend to the Setter himself, so that his Successors can only quarrel these Rights upon such reasons as the Setter himself could have quarrelled them, Vid. Hopes Major Pract. Tit. Kirk.  
THis Act is explained by the 48 Act 3 Par. Ja. 6. 
ACT 116.   
BY this Act the Woman Divorced for the Crime of Adultery committed by her, 
ACT 117.  cannot Dispone her Estate to her Adulterer, if she Mary him, or to the Children procreate of that pretended Marriage, which has been introduced, not only as a punishment of the Adultery when committed, but to discourage any from committing Adultery, upon hopes that their Children might succeed to their Estates with whom they committed Adultery, which is conform to the Canon Law, by which non licet eam ducere in uxorem quam quis polluit adulterio, and by the Civil Law, that woman could not Institute that Servant her Heir with whom she had committed Adultery, Inst. de haered. instit. in princip. These Marriages are likewise declared null by the 20. Act 16 Par. Ja. 6. Vid. crim. pract. Tit. Adultery, pag. 1●2.  
THough regularly Liferent-Escheats do not fall while after year and day; 
ACT 118.  yet such as commit Slaughter within Kirks, or Kirk-yards, and the Resetters of them, lose their Liferent-escheat immediately after Declarator, and this Liferent falls to the King, though in other cases Liferents fall to the Superior, of whom the respective Lands hold.  

ACT 119.  IT was usual to mortify to Abbacies, formal and established Patronages of Kirks, which were formally erected in Parsonages, and to these the Monks presented Parsons, and were only in place of Patrons; at other times Tiends were Mortified and given to them; and after the Reformation, though Tiends were declared the Patrimony of the Church by the Act of Annexation; yet thereafter the Lords of Erection did prevail, by their importunity with the King, to erect these Tiends in Rectories, or Parsonages, whereof the Patronage was given to the Lord of Erection; but there can be nothing so unjust or illegal as these Patronages were; and therefore by this Act, the Parliament finding this abuse was growing, did declare that all Erections of Kirk-lands, and Teinds in Temporal Lordships and Livings, to the prejudice of the Kirk, and hurt of His Majesty's Estate, and privilege of his Crown, were null, which is founded upon excellent Reason; for such Erections of Tiends were extremely to the prejudice of the Church; Tiends being clearly by former Laws, declared to be the Spirituality, and so the Patrimony of the Church;  
2. Laics having power to present whom they pleased, such Erections did much hurt the Church, since it gave to Laics the power of presenting.  
3. It is too well known that such as are presented by these Patrons, do ordinarily grant Tacks in favours of the Patron, and to his behoof, which has been always looked upon, as not only Simony, but as most prejudicial to the interest of the Church, making the Ministry despicable, and tempting them to ill shifts, and discouraging worthy and honest men from seeking such slavish Benefices, and therefore the Church has been always an enemy to such Impropriations, even when made in favours of Religious Monasteries; for Pope Alexander anno 1170 cap. Avaritiae. extra. de Praebendis, says, Intelleximus quod in Ecclesiis vestris pensiones percipere consuevistis & antiquos reditus Minorastis ideo mandamus ut antiquos reditus cum consensu Archiepiscopi ad integritatem pristinam revocetis: and therefore the same Pope Alexander in the Lateran Council, made a Canon against this abuse, which was seconded by Pope Clement the 2. cap. sicut extra▪ de suplen. neglig. Praelat. and by Clement the fourth, in anno 1240: cap. Suscepti d● Praebend. in 6. but this was perfected by Clement the fifth, cap. constitut. de jure patronatus in Clementin, where it is appointed that si certa portio (called constantly in the Canon Law congrua portio) non fue●●t ●ssignata per presentantem tune in paenam praesentantium ad Dioces●●●● ipsos potestas hujusmo●● assignationis devolvatur. And since there was so great hazard in putting these Presentations in the hands of Monastries, what may be expected from Laics?  
These Erections likewise of new Patronages, are extremely disadvantageous to the people, because one Gentleman has thereby right to force a Minister upon all the other ancient and great Heretors of the Paroch. Likeas, by being Patron, he comes to have interest in all their Teinds; and since the great design of the submission and surrender, was, that every man might have right to his own Teinds, this could never have been fully done, except the Patronages had been surrendered, for the Patron still would be in effect Titular, by getting Tacks.  
Likeas, by the submission, as in the beginning of it, they submit, as having, or pretending right to the Parsonage, Vicarage, or Patronage of Kirks pertaining to the Erections, so in the words of the Submission, they submit how they may be Denuded in His Majesty's favours omni halili modo, of all and sundry Tiends, which they have of any other men's Lands, by whatsoever Right or Title they possess the same; and because His Majesty will take into His Princely Consideration, what satisfaction they shall have for their Tacks, Rights, and Patronages, according as His Majesty shall find the validity thereof. Therefore they submit, and His Majesty considers in the Decreet-arbitral, all the Patronages as submitted; and the reason why he determines nothing, especially for the Patronages, is, because considering all the Erection together, he determines satisfaction for that which is the true pecuniary interest, nor needed the Act of Parliament express Patronages, because it only expresses these things, for which a pecuniary interest was to be given; or these Rights which were to be salved, but Patronages was neither of these: But the Act having annexed all the Superiorities of Kirk-lands, and Pertinents thereof, pertaining to whatsoever Abbacy, etc. according to the Tenor of His Majesty's general determination, and the conditions therein expressed, it has thereby annexed all the Patronages, and it is observable, that though reservations are made, yet there is no reservation of Patronages.  
Nota, That the King's Advocate in his Summons of Reduction, calls for all Rights of Patronages per expressum, and then says, and true it is that the said Kirk-lands, and others Libelled were annexed to the Crown by the Act of Parliament.  
THis Act is Explained Crim. pract. Tit. Heresy, num. 4. 
ACT 120.   
THis Act regulating the Thirds of Benefices is now in Desuetude. 
ACT 121.   

ACT 122.  OBserv. 1. That Mercats are by this Act only discharged on Sunday in the Country, and not in burgh's Royal, for this Act is declared to be without prejudice of the Liberties of burgh's Royal; but this Discharge is extended to all, Act 159 Par. 13 Ja. 6.  
Observ. 2. From the words, not being the Mercat day of the next Burgh, that even the Parliament would grant no Liberty to hold Fairs in prejudice of Fairs granted formerly to other burgh's; and upon this principle of common equity, & ne quid siat in aemulationem vicini. The Lords Reduced a Fair granted to Glenbervie by the King, because it was upon the same day that His Majesty had granted a Fair formerly to Glensarquhar, and within a mile of the other: and another granted to the Earl of Aboyn, because upon the same day, and within a mile of an old Fair at Birse, though it was alleged that the River of Dee was here interjected, which by its great Torrents about Michaelmass, stopped all the North from coming to the Fair, and Frits. de nundinis Treating this question, confesses that a Fair cannot be said to be in aemulationem vicini, where the reason why it was granted, could be attributed to any public Good, or Utility. It was also urged, that the granting Fairs being a mere gratuitous concession, the King could not be bound up from granting a new Fair; and thus we see that the King erects new burgh's Royal within a mile of other burgh's, and erects the Suburbs of Towns to be burgh's of Barony, albeit these may be said to be in aemulationem alterius; and really they are very prejudicial, nor can that maxim hold any where, save in private Deeds done by one Neighbour to another, principally in prejudice of another, but yet that burgh's cannot be erected in prejudice of other burgh's, and what may be said to be granted in prejudice of other burgh's, and how far this general may extend, is to be seen in Fritsius de nundinis.  
Observ. 3. It has been urged that as by this Act, these who had Mercats upon Sunday, may hold them upon a Week Day; so if any person indite a Court, and cite to a day then lawful, though that day be thereafter declared a Holiday, yet the persons thereto cited are bound to appear the next lawful day, even where the Diets are peremptory.  
BY this excellent Act Sheriffs and other Judges ordinar are commanded to search Rebels, 
ACT 124.  not only within their own Jurisdiction, but to advertise the Sheriffs of the four halfs about, and that under the same pains that the Traitors or Rebels themselves incur; and the recovering Decreets is not sufficient, but they must seek, follow, pursue and present them to Justice. This Act is but ill observed, though most necessary and reasonable; and by the 15 Act Sess. 3 Par. 1 Ch. 2. It is declared, that not only by Law, but by 〈…〉 and duty of their Office, Sheriffs, Stuarts, and 〈◊〉 of Regalities are obliged to put the Laws in execution against the contemners of His Majesty's Authority, as his proper Officers.  
BY this Act the Lion and his Brethren Heralds, are ordained to 〈◊〉 the whole Arms, and as to this part, 
ACT 125.  I have Explained it in my Book of Herauldy.  
By this Act also Letters of Treason are ordained to be executed by Heralds or Pursuivants, bearing their Coats of Arms, or Macers; which Solemnities were found only necessary in execution of Letters, that is to say, Summons of Treason, but not in the execution of Inditements of Treason, December 5. 1666. And the reason of the difference seems to be, because acts of Parliament are stricti juris, nor can an Indictment be c●ll'd Letters of Treason. Likeas, the reason of these Solemnities in executing of Letters of Treason, is, that the people may take notice who are cited for Treason, as the weightin ss thereof requires, which are the words of the Act, but Inditem●nts being only given to such as are in Prison, there needs no Solemnly; and yet for the more security, Inditements of Treason are also executed against Prisoners by a Herald.  
That part of the Act which relates to the Deprivation of Messengers is formerly Explained, Act 46 Par. 11 Ja. 6. Only it may be observed, that though the Lion by this Act is ordained to deprive Messengers by advice of the Lords of Session; yet he uses to Deprive them by his own Authority, and in his own Court, and though he publishes the Deprivation at the M●reat Cross; yet Executions after that Publication have been sustained, if the Messenger, after that Publication was habit, and repute a Messenger, November 10. 1676. Stenart contra Hay. And though it may be alleged that this Publication should put the Liege's in mala side, as well as the Publication of Interdictions and Inhibitions; yet the answer is, that there are public Registers in these cases which may inform these who are to Transact, which cannot clear them as to the Deprivation of Messengers.  
THough this Act appoints that the Justice-Clerk or his Deputs, shall within six days after Criminal Letters are returned, 
ACT 126.  deliver the names of the persons Denunced, with a brief Note of the cause of their Denunciation to the Thesaurer; as also, the Names of such as are Unlawed for absence from Assizes; yet this is not now in observance, all that is observed now being only, that upon a Command from the Thesaury; these Lists are given in so, that this Act is rather forgot than in Desuetude.  
By the last part of this Act, all Commissions of Justiciary, for longer space than the particular affair for which it is granted, are Discharged; and therefore by this Act it would appear, that Commissions for Justiciary, granted for a year, or any definite time, and not for a particular Business, are null.  
It is likewise appointed by this Clause, that such as procure Commissions of Justiciary, shall find Caution to Re-produce the Process, and to pay that part of the Commodity, which by the Commission is destinated for the King's use, which is most rational, because this would likewise oblige these who get the Commission to do Justice, knowing that the Process may be revised, when it is lying in publica custodia, that is to say, in the Books of Adjournal, for such Processes ought to be brought back, and are usually Registrated there; but this is oftimes neglected, and it was Debated in the Case, Turnbul against the Lord Cranstoun, July 1678. That the Tenor of a Decreet of Forfalture, pronounced upon a Commission granted to the Earl of Dumbar, could not be proven, except the Process were produced, whereupon it proceeded, conform to this Act, since all that the Witnesses could prove, was, that they had seen such a Decreet, which is not sufficient, for else an unjust Decreet of Forefalture might be pronounced and lost, to the end the Tenor thereof might be proven without any possibility of quarrelling the Warrants, whereupon it proceeded.  
It may be doubted what is meant by that part of the Commodity which belongs to the King; and I conceive that when such Commissions of Justiciary are granted, the whole Escheat belongs to the King, and the Commissioners have only Right to their necessary Expense tanquam mandatarii, except a particular Quota be condescended on in their Commission, though some are of opinion that these Commissioners have right to the same Quota's that Sheriffs have, since they are Sheriffs in that part,  

ACT 127.  BY this Act the Comptrollers consent is requisite in all Infeftments of Feu-ferm or Confirmations of the King's proper Lands; and though there be no controller now, yet the consent of the Commissioners of the Thesaury, or Thesaurer, if he were, supplies the same. Hence it is that this Act appoints all Feu-ferms and Confirmations to pass the Comptrollers Register, which is likewise Ratified by the 171 Act 13 Par. Ja. 6. It is sit to know that the Thesaurer and controller had different Registers, but now there is but one Clerk to all the Exchequer, who is called the Thesaurers' Clerk, and he keeps but one Register, each Volumn whereof is divided in two parts, the one whereof contains only Gifts that pass the Exchequer, and the other, all other Signatures of Confirmation, etc.  
Beast's found in His Majesty's Forests or Parks, may be brevi manu, 
ACT 128.  intrometted with, Vid. Act 12 Par. 4 Ja. 5. But since Forests are not now Fenced, it seems unreasonable that a Beast straying should be Escheated, though where Beasts are designedly driven into a Forest, it deserves punishment, and this Act seems only to speak of Fenced Forests, for it says, Parks, or Forests; and it requires advertisement, before Beasts even found in these, can be Escheat, Vid. Argent. Tit. des Assize, where this matter is fully Treated.  
ALL English Goods may be searched for, and if they be not Sealed by the Customers, may be Confiscated, 
ACT 129.  which Act being put in practice at Edinburgh, in anno 1664. occasioned a great Tumult, and the Act was alleged to be in Desuetude. The word Selling in this Act is wrong Printed in the last Impression, for it should be Sealing.  
Nota, This Act Ratifies only an Act of Privy Council, which ordained formerly Confiscation; and this shows how great the King's power was of old in the matter of Trade, Vide Act 24 Par. 16 Ja. 6. which renews again this Act.  
VId. last Act 1 Par. Ch. 1. 
ACT 130.   
THis Act is Temporary, but from it, it is observable, that as the King may, as Superior, 
ACT 131.  call for production of any Vassals Rights and Infeftments, in a Reduction or Improbation, and even by way of Exhibition, which is conform to the Feudal Law, and to c. 24. Quon. Attach. so the King may by Act of Parliament, sometime call for production of all the Rights of His Vassals of Kirk-lands together, as in this Act, or of all the Rights of any particular place, as of the Isles Act 262 P. 15 I. 6. And I think the King might have called for them without this Act, by Proclamation, and albeit it be said, c. 25. Quon. Attach. That the Vassal shall only be obliged to show his Evidents once in his Life to the King; this is not now observed, and the true meaning of it is only designed against too frequent troubling of the Liedges, which as no Calumniousness, is never to be presumed in the King, or His Officers.  
THis Act appoints Lords of the Session not to be admitted till they be twenty five years of age, 
ACT 132.  which agrees with the Law of France, Langlei Sem●str: c. 10. and with that of Venice, Contar. L. 3. c. 3. Whereas of old, the Romans admitted no Senators till thirty five, which Augustus retrenched till thirty, Sweton. c. 32. Vid. 93. Act Par. 6 Ja. 6. But that part of the Act appointing that none shall be admitted Lords, but such as have a thousand Marks of Rent, or twenty Chalders of Victual, is not now strictly observed, though this was an Act to prevent the Temptation of Bribing, and that parties injured by them may have somewhat, out of which they may expect Reparation, si judex litem suam secerit.  

ACT 133.  THe antedating of Warrants of Signatures is here punished, by the punishment of Falsehood and Treason, three parts to the King, and the fourth to the party grieved; from which it may be argued, that where no party is grieved, the punishment cannot be inferred, especially seeing in that case it is presumeable there was no dolus, or Fraud, vid. cap. 9 Statut. Robert 3.  

ACT 135.  THough Reversions be strictissimi iuris (which was the ratio dubitandi in this Act) and albeit the Contract bear, That there shall be no Redemption, without payment of more than ten for every hundred, as annualrent: Yet it is here declared, That ten for the hundred shall be sufficient, and now six of the hundred will be sufficient, though this Act does not generally say, that the Consignation of the ordinary Annualrent shall be sufficient.  

ACT 137.  THis Act is Explained in the 62 Act Par. 11 Ja. 6.  
BY this Act, generally all unlawful and impossible Conditions in Contracts, 
ACT 138.  or Obligations amongst private parties, are discharged in general, which is conform to the Civil Law; by which impossible Conditions adjected in Testaments, are held as not adjected, or mentioned, but annul not that part of the Testament, to which they are adjected, §. 10. Ins●●t. de haer●d Ins●it. But in Contracts, the adjecting of an impossible Clause do●s annul the Obligation itself, l. 7. de verb. obliga. l. 31. the oblige. & Act. And the reason of this difference is, because the Law presumes, that where men adject impossible conditions in Contracts, they are not serious, and they resolve not to oblige themselves; but it is to be presumed, that all men being serious in their Testaments, the adjecting of such conditions did proceed from a mistake. Conditio turpis, and unlawful conditions are judged in Law as impossible, l. 15. the cond. inst. and yet in this Act the Obligation subsists in Contracts; and the impossible, or unlawful Conditions thereto adjected, and not the Contract itself, are irritated and declared null; but the particular that gave occasion to this general part of the Statute, was that some persons did declare by a Clause in the Bonds which they took, that it should be lawful to them to Charge their Debtor at the Mercat Cross of Edinburgh, and not personally, and that too upon so short a time as the party Charged could not know, so that their Escheat fell, and they lost personam standi in judicio, without knowing, or b●ing able to know their danger; which Clause is declared unlawful and impossible: and yet it may be alleged this is not unjust, for when a man lends his Money to one living in Zeatland, or the remote Isles, and the Debtor suffers the day of payment to elapse; it seems unreasonable, that for Debts which may be very small, he should be obliged to send to these remote and dangerous parts, to Charge the Debtor personally, and the Debtor may constitute a Procurator at Edinburgh to pay, & sibi imputet, that he did not pay, and it is presumed, that at Edinburgh, which is communis patria, every man hath a Procurator, else Citations at the Peer and Shore of Lieth upon sixty days, where the man is in the Indies, were as unlawful as this is, and the performance as impossible.  
Notwithstanding of this Act, I find that a Charge of Horning upon six days, by a consent in the Clause of Registration, was sustained, though the person Denunced offered to prove that he could not obey the Charge, he living in so remote a place, January 1675. Meldrum contra Tolquhon: and though by this Act it be appointed▪ that the Denunciations upon such unlawful Obligations shall be null, and that the users shall be obliged to Denunce, and Charge of new, according to the custom of the Realm; yet I see not how this can be, for the Clause of Registration insert, being upon six days, or a shorter time, cannot be a sufficient warrant, to Charge upon more days, and so that new Charge would want a warrant, except this Act of Parliament shall be said to be the warrant thereof.  
NOtwithstanding of this Act, appointing all Executions to be subscribed; yet in inferior Courts, 
ACT 139.  verbal Executions are oft sustained.  
Though the word Executions is not derived from pure Latin, or Roman Custom; yet it seems founded on l. 2. ff. de re Jud. and is derived to us from the French, who have, and do always use it in the sense we do, Vid. Argent. Tit. des Executions.  
VId. Act 29 Par. 11 Ja. 6. 
ACT 140.   
BY this Act it is justly ordained that Compensation be received, 
ACT 141.  if instantly verified by Writ, or Oath of party before Sentence, but that it be not at all received after Sentence, by way of Suspension or Reduction, so that the only Remedy in that case, is to pursue the Debt as accords: Which Act is extended to Decreets of the Session, as well where the Decreets are in absence, as where they are in foro, July 25. 1676. Wright contra Sheil: such respect is given to the Decreet of the Lords; but yet if Contumacy be purged, it is thought that Compensation may be received by way of Reduction, Haddit▪ December 20. and generally Compensation is received against Decreets in absence, before inferior Courts: June 18. 1662. Earl Marischal contra Bray.  
Though by the Civil Law compensatio tollit debitum ipso jure, and so that it may seem that this exception is still receivable any way, even as the exception of payment, which is receivable against Decreets of the Session in absence; yet even by the Civil Law compensatio debet opponi, because it is facti, and so sibi imputet, the Debtor that compeared not to propone it, I find this Act is in terminis, observed in Holland, vid. Neostad. decis. 95.  
THe intrometters with escheat Goods as well as the Donatar are obliged to pay the Debt contained in the Horning, 
ACT 143.  whereupon the Gift proceeds.  
Observ. 1. That though generally the Donatar is only thought liable in this case, yet all intrometters with any part, though never so small, are liable, and this is a kind of vicious Intromission, which makes the intrometter liable in solidum, and not in quantum lucratur.  
Observ. 2. That the Donatar will not be found liable till after general Declarator, because it is only general Declarator that puts the Donatar in the Rebel's place, as Spotswood observes, March 20▪ 1626. But if the Donatar delay to pursue a Declarator, I think his negligence should not prejudge a Creditor, for the same reason also, a Donatar is not liable if the Horning be null, except he has intrometted; but if he has intrometted, res non est integra, and so his offering to Renunce the Gift, will not be sufficient, March 15 1631. Fletcher contra Kid. It hath likewise been found that the Donatar will not be subject in payment of Annualrent, due after Denunciation, because the Act appoints him only to be liable for the Debt contained in the Horning, and this Annualrent is due only after the Horning, March 15. 1631. Fletcher contra Kid, But this Decision may be doubted, since he being by the Act liable for the Debt accessorium sequitur principale; and if the Debtor had got the Escheat himself, he had gotten payment of all.  
Observ. 3. That this Act appoints Letters to be direct against the Donatar, and Intrometters, for payment upon six days.  

ACT 144.  BY this Act such as reset, supply, or intercommune with declared Traitors or Rebels, are declared liable in the same pains, for the which they are Forefalted, or put to the Horn; and it is ordained that all the Subjects are liable to search, seek, take, or apprehend them, till they be out of the Shire where they live, and to intimat to the next Magistrate, to whose bounds they have chased them.  
Item, If any Vagabounds or suspect persons come to the Shire, every man is obliged to advertise some Magistrate.  
Observ. 1. That here the Subjects are obliged, without being desired by the Magistrate, to search for, and apprehend Rebels, and so the Objection against the Bond appointed by the Council, January 1678. Wherein it was asserted, that no present Subject was bound to take, or search for Rebels, was a most illegal Objection, expressly contrary, not only to this Act, but to the true interest of the Commonwealth, which obliges every man to do his utmost endeavour to keep the Country quiet: Nor can there be any thing more reasonable than that these who enter in a Society shall promote the good of the Society, by all possible means, and that these who have the protection of the Law, should persecute all such as oppose it; and this Duty to the King, in taking such as are Rebels to him, seems to be employed in the very nature of our Allegiance. But it may be argued, that this should only be extended to such as are Traitors, or at least to such as are Intercommuned, which is contrary to the express words of this Act, whereby all men are discharged to reset Traitors, or Rebels, contemnantly remaining at the Horn, so that the resetting all who remain at the Horn, is here punished; and this Act being designed, as the Act bears, as a further addition to the former Law, must be extended against all Rebels, for the Common Law did formerly reach this far against the resetting of Traitors, and Intercommuned persons, vid. Act 97 Par. 7 Ja. 5. And whereas it may be pretended, that this Act obliges only the Liege's to assist Magistrates in taking such persons. It is answered, that that was sufficiently secured by former Laws, and this Act obliges all the Liege's simply.  
BY this excellent Act, 
ACT 145.  it is provided that all Gifts of Escheat taken simulatly, either by the Rebel himself, or by others, to the behoof of the Rebel, shall be null, for else the falling of their Escheat would be no punishment to Rebels, nor discouragement from Rebellion.  
This simulation may be proved, either directly by the Oath of the Donatar, or may be inferred from presumptions, as all other Frauds and Simulations are, since the design of Fraud and Dissimulation, being to palliate and cover a Cheat, if presumptions were not sustained to astruct the Simulation, it could never be discovered.  
The first Presumption is, that the Gift is granted to the Children of the Rebel, and if the Children be unforis familiat, it is concluded to be a simulat Gift presumptione juris; and yet if a Child in familia, have a peculium of his own. It may be alleged that his Father as Administrator, being Debtor to him, he has taken his Escheat in his Sons Name for his security, but though the Children be forisfamiliat; yet by this Act of Parliament, there lies presumptio juris against them, if this Rebel continue in Possession; and therefore the Children must prove that they have it for an onerous Cause, and thus is to be understood that Decision of Dury, March 20. 1623. Lord Keith contra Denbolm; Where it was found that no Contingency of Blood, no not the being a Son, was sufficient to infer Simulation; but if this were sustained simply, as ordinarily it is, than Creditors may be easily cheated, and the Donatar might still continue to have the advantage of the Escheat, though not the possession of the Goods.  
Likas, by this Act of Parliament, it is expressly provided that the Thesaurer may intromet with the Goods, if they be in the possession of the Rebel, his Wife, or Bairns, which shows that the Parliament looked upon this as a presumption to infer Fraud.  
The second Presumption is, that the Gift was exped upon the Expense of the Rebel, though the Donatar was Creditor, except in so far as the Donatar made use of the Gift, being Creditor for his own security, March 11. 1624. And if yet the Creditor was only Creditor, by buying of Land from the Rebel, and knew that there was a prior Right granted to another person. The Lords Declared that his Gift should not prejudge that prior Right, June 22 1669. And if the Rebel did once take the Gift blank, though he thereafter filled up a lawful Creditors Name therein, the Rebel procuring the Gift so upon his own expense, this will infer it to be simulat, and extinguish the Right, though the Donatar was truly a lawful Creditor, December 17. 1670. Lantoun contra Scot By which it may be concluded, that though originally the Rebel may exped a Gift upon his own expenses, for the behoof of a lawful Creditor, where the Rebel takes the Gift himself, and thereafter fills up a lawful Creditors Name, that will not make it reconvalesce, nam quod ab initio vitiosum est tractu temporis non potest convalescere.  
That the Gift was passed upon the Rebel's expense, is probable per membra Curiae (viz.) The Servants of Exchequer, and Keepers of the Seals, except the Donatar has made Faith at the passing of the Gift, that it was truly to his own behoof, the simulation having been then suspected, because he who sought the Gift was the Rebel's Son, December 4. 1669. And generally, if the Donatar in fortification of his Gift and Debt, offer to make Faith that the Gift is truly to his own behoof, this would be sustained to purge any Presumptions of Simulation, December 12. 1673.  
The third Presumption is the Rebels retaining Possession, but how long Possession would be sufficient to infer this Simulation, is in arbitrio judicis, for the suffering the Rebel to remain some time in possession is no presumption, even against a Son, since the Donatar must have some time to pursue, and recover Decreets, but if the Donatar suffer him to continue very long, this is presumptio juris & de jure, for though there were no Simulation in the the case; yet the negligence of the first Donatar would make place for a second, and even the Donators suffering the Rebel to possess three years, has been found to be presumptio juris, for inferring Simulation, June 1666. Oliphant contra Oliphant.  
There is a Title in the Civil Law de collusione detegenda, which though it run there only against Collusion inter dominos & servos, yet the whole matter of Collusion is there Treated by the Doctors, and it is defined to be sub specie litis lusus, Vide Barthol. Ca●oll. de simulationibus, where this Subject is fully Treated.  
By the last Clause in this Act, it is provided that the Thesaurer, or his Deputs, may cause secure the Houses of the Committers of the Crimes, upon the expenses of the readiest of the Escheat Goods, that is like that annotatio bonorum, allowed by the Civil Law, in Criminals against absents; and though the Act of Parliament specifies only that this may be done in Crimes, yet I conceive that all Rebellion is comprehended under the word Crimes; for in all cases, even for civil Rebellion, not only may the Thesaurer Seal till Caution be found, but even the Lords of Session will, upon a Bill, allow the Sealing of the Rebel's Goods at the Donatars instance, till Caution be found.  
WIlful setting of Fire in Coal-he●ghs is Treason, 
ACT 146.  vid. crim. pract. Tit. Fire-raising.  
THis Act is Explained crim. pract. Tit. Beggars and Vagabonds. 
ACT 147.   
THis Act against Forestall, is fully Explained, 
ACT 148.  crim. pract. tit. Forestallers.  
TAis Act punishing the Carriers of Wool, Nolt, and Sheep into England, by Escheating the Transgressor's Movables, 
ACT 149.  is not abrogated by the Union of the Crowns, the Nations being still distinct.  
THis Act against Deforcers is Explained, 
ACT 150.  crim. pract. tit. Deforcement.  
THis Act is Explained, crim. pract, tit. Art and Part, 
ACT 151.  num. 2.  
THis Act declaring that none but actual Burgesses shall Traffic, 
ACT 152.  is fully Explained, 5 Act 3 Sess. 2 Par. Ch. 2.  
BY this Act all manner of persons, Inhabitants of burgh's, exercing any manner of Traffic, or having Change therein, 
ACT 153.  shall bear Stint; Which Act was found not to extend to Indwellers, though they have the benefit of the Mercats, and had never any other Residence but within Burgh, and have the benefit of Seats in the Kirks, and so should at least pay Contribution for the Minister's Stipend, January 11. 1678. Town of Alerdene contra Lesk. And by the 275 Act 15 Par. Ja. 6. All such as have an hundred pounds of yearly Rent, may be Stented; but by 276 Act of that Parliament, they are only to be Stented according to the value of what Rent they have within that Burgh, and not according to what they are worth elsewhere; but it may seem that by the 275 Act, all who have an hundred pound to spend, aught to be Stented; that therefore Indwellers are to be Stented, though they have not an hundred pound of Rent in House-mail, or Trade, for the Act says, if they may spend, and not if they have; and therefore that the persons who come in accidentally to live in Town, should not pay; yet if they have no other constant Dwelling, save in Burgh, that in that case they ought to pay, because it is just, all Subjects should bear some burden, and they bear none elsewhere, to which nothing can be answered, but that the Act ordains only such to be Stented, as have Rents and Livings copulative.  
Observ. That by this Act one of every Craft is to be exemed, as His Majesty's Servant, from all Taxation, Watching, and Warding, such as the King's Tailȝour, His Smith, etc. And yet this Act does not exeem them actually, but only allows His Majesty to exeem, if He pleases, so that except these be actually exemed by their Gift, this Act will not exeem them. This privilege is renewed, Act 275 Par. 15 Ja. 6. And His Majesty by His Gifts to His Workmen, declares them to be exeem'd, conform to these Acts, whereupon the Council in anno 1680. did find they should not be stented; and all these privileges are again Ratified in the Parliament, 1681. But there being a Declarator raised of these privileges before the Lords of Session in anno 1684. It was objected, first, That because these Acts being made in favours of the King's Servants, whilst our Kings lived in Scotland, and they actually tied to Service, the said's Acts should not now take place, but should cease with the Service, whereupon they are sounded.  
2. Though wright's, Masons, etc. Who are actually at present tied to serve, may plead this privilege, yet the same cannot be craved by the King's Barbers, Shoemakers, etc. who never serve.  
3. The said Exemption could extend no further than to the value of the employment they had from the King; but if the King's Smith, etc. have from the people, the employment that other poor Smiths should have, it were not just that he should be exeem'd, which were to make them pay the value of the Impositions that should be put upon him.  
4. That these Laws could not exeem from paying, for their other Trades; So that if the King's Mason be likewise a Vintner, he should pay for his gain in that Trade.  
5. These Acts of Parliament could only free from Watching, and Warding, which are inconsistent with personal attendence, but should not be extended to Stents and Impositions, which were not usual before these Acts, since the general words of Laws are ordinarily restricted to what ordinarily happens in the time  
6. Though these Exemptions could secure against Impositions laid on by the Town, yet they cannot secure against Impositions laid on in Parliament by voluntar offers, made by the Subjects themselves, in which those Tradesmen must be considered as voluntary Offerers, as well as others, since they are re-presented in Parliament as well as others: And in which Act, Colleges and Hospitals are only exeem'd, and not they; this Debate is as yet come to no Decision.  
BY this Act the Craftsmen living in Suburbs of Free and Royal burrows, are discharged to work, 
ACT 154.  and their work declared con●●●●able; but this Act is not extended to Suburbs, that are erected in a Burgh of Barony, for these are privileged by their erection, and are not mere Suburbs, but distinct Jurisdictions, July 21. 1629. and there is a Decreet arbitral betwixt Edinburgh and the Suburbs, wherein there is a Liberty allowed to these who live in their Suburbs, to work to Strangers, but not to Townsmen. This Act of Parliament has likewise been extended, not only to Suburbs, but to all who were within the Liberties and Privileges of Burrows Royal, though the said's places be not properly Suburbs, and that the Act of Parliament discharges only the exercise of such Crafts in Suburbs adjacent to the said's Burrows, July 7. 1671. Town of Stirling contra Polmais, whose Tenants and Tradesmen in Saint Ninians lived a mile from the Town of Stirling, vid. etiam, Durie March 21. 1628. and the reason of this Decision was, because such Un-free men as live within the Privileges, do as well abstract the Trade of the Inhabitants, as those who live within the Suburbs.  
It may be doubted whether, since this Act of Parliament allows only the Provost and Bailies, or the Officers to intromet with, and Escheat the materials so wrought, if therefore the Craftsmen within Towns may intromet, they being neither named in this allowance; and because they are too interested to have had this power committed to them.  
It may be also doubted whether, though they may Escheat the Goods, when they are actually taken, if they may by virtue of this Act, pursue the Un-free-men; for though there be no such warrant in this Act; yet it seems that without they have this allowance, the Privilege granted by the Act, would be useless, since it would put them to keep more Servants to catch the Inbringers, than the Privilege deserves.  
VId. Nota's on Act 74 Par. 14. Ja. 2. & crim. pract. Tit. Remissions. 
ACT 155.   

ACT 155.  THis Act discharging the Transporting of Skins forth of the Realm, under pain of Confiscation, is still in force, and was introduced to encourage our own Manufactors; these Skins when carried out, being wrought by strangers into several useful Commodities, and sold back to ourselves at great rates; though this Act discharges only the carrying out of Calf-Skins, Hudrons, and Kid-Skins, yet by the 178 Act 13 Par. Ja. 6. This is extended to all other Skins; and though by this Act, the Confiscation is to be for His Majesty's use, yet by that Act, the half belongs to the Apprehender.  
Observ. 2. Not only the Transporting, but even the packing and pielling is found to be a sufficient ground of Confiscation; for packing and pielling is presumptione juris, concluded to be in order to Transportation; but it is not presumptio juris & de jure, since to elide the Confiscation, it is sufficient to allege that the Skins were packed and pielled, in order only to an inward Transportation from one place of the Kingdom to another.  
Observ. 3. That by the 45 Act Par. 1 Ch. 2. The Exportation of all wild Beasts Skins, and Shorlings, are expressly discharged; and by Shorlings are meant, Skins which have the Wool plucked off, and comes from the word Shearing; but by that Act, power is given to the Exchequer to give Licences for Exporting of Skins as they shall find cause; and though the power to grant such Licences, may seem to cast loose all these Acts, it being very presumable that they would be purchased for Money; yet that was thought necessary, because if our Tradesmen knew that no Skins could be Exported, they would lessen the price as they pleased, and sometimes the Tradesmen cannot make use of all the Skins in the Nation, and Skins are a considerable part of some men's Rent; nor should the Exchequer give Licences in any other case.  
THis Act renews the 54 Act 6 Par. Queen Mary, Discharging all persons to stop the way to Free-burrows, 
ACT 156.  or Sea ports, under the pain of being pursued as Oppressors, and allows the Lords of Session to pursue the Contraveeners summarily without any Assize; which Act was necessary, because all actions of Molestations, such as this, was formerly ordained to be tried by Assizes, and before inferior Judges, 11 Act Par. 42 Ja. 6. From which Act these Trials are excepted, because of their great importance, and that they require present expedition; for which cause the Civil Law allowed several Interdicts against stopers of Highways, Vid. tit. 10. l. 3. ff. 6. By the 38 Act 1 Par. Ch. 2. All Highways to Mercat Towns are ordained to be twenty Foot of Measure, and the Justices of Peace are ordered to see the Highways made to have that Latitude at least: and by the Civil Law, via privata debet esse octo pedum in porrectum & 16. pedum in ansractum l. viae latitudo ff. de servit. prae. rusticorum via autem publica seu consularis tam lata esse debet ut currus obvii sibi invicem cedere possint Coepol. de servit. rusticis, cap. 3. I find this Law for securing the Highways to ●oyal Burrows was very old in France, Argentorat, pag. 201. where he very well observes that Ita fit ut itinera quae ab agris paroecii● aut pagis in●hoantur l●●et in mercatum ducant publica dici non debea●● cum a mercatu ad mer●atum non ducant ut hoc textu sed e●si ab ur●ibus inci●iunt nec tamen in urbes aut alios mercatus ducant publica hac quidem lege non sunt. I find always that Ways leading to burgh's had a particular privilege, by the Civil Law.  
THis Act allows the Admiral no more Jurisdiction than he exercised before the death of King Ja. 5. 
ACT 157.  Notwithstanding of any Specialties contained in their Infeftments, and it may be doubted whether the Admiral is to prove when he is challenged, that that for which he is challenged, was exercised by his Predecessors in the time of King Ja. 5. Or if such as Challenge the Admiral, are to prove what was the custom then. But the Admiral's Jurisdiction is now fully cleared by the 16 Act Par. 3. Ch. 2.  
THis Act is Explained, Act concerning Provestries. Ch. 2 Par. 1 Sess. 1 Act 54. 
ACT 158.    

King James the sixth, Parliament 13.  
THis Act discharging Mercats and Fairs on the Sabbath-day, 
ACT 159.  was made at the desire of the General Assembly, as our History observes, Vid. spotswood's History of the Reformation.  
THis Act appointing such as contemn the Decreets of the Kirk, 
ACT 160.  to be Denunced Rebels, is still in force, though it relates only to the Decreets of Presbyteries, and Presbyterian Judicatures, and though these be now abrogated.  
THis Act is formerly Explained in the Act 48 Par. 3 Ja. 6. 
ACT 161.   
IT may be doubted whether this privilege granted to Ministers, 
ACT 162.  freeing their Stipends of all Impositions can be taken from them by Conventions of States, since Conventions cannot derogat from Acts of Parliament, and they can only offer their own Money, but cannot make Laws; and yet the Convention 1666. did burden Ministers Stipends with the Imposition then laid on.  

ACT 164.  IT is observable from this Act, that some Crimes which are not Capital of their own Nature, become Capital by reiteration, though many Civilians doubt of this point, and yet crescente malitia crescere debet paena, l. 4. C. de servis fugit & plus punitur qui saepius deliquit, l. 8. §. 2. C. ad l. Jul. de vi pub.  

ACT 166.  BY this Act the pains of such as find Caution to answer in Criminal Diets, and report Criminal Letters, for Law borrows are heightened, every Earl or Lord two thousand Pounds; every great Baron a thousand pounds; every Freeholder a thousand marks; every Fevar five hundred marks, and these are called in our present stile, the pains of the new Act of Parliament.  
Observ. 1. That it has been debated from this Act, whether this Caution should be found according to the quality of the Pursuer or the Defender; as for instance, if an Earl were pursuing a Fevar, should he find Caution according to the sum specified for an Earl, or for a Fevar, and it was found that Caution should be found for five hundred marks only, according to the condition of the Defender.  
Observ. 2. The quality of a Burges is not here specified, and if he hold Land Burgages, he is de praxi considered as a Free holder, else he is considered as an Un-landed Gentleman, and if he holds feu of the Burgh, he is considered as a Fevar.  
Observ. 3. The Unlaw of such as compear not at the first Justice air, is to be twenty pounds, that is to say, the Master who presents not his Tenants, is to pay twenty pounds over and above all other punishments, which is relative to the 6 Act 5 Par. Ja. 6. and is there Explained. Vid. supra obs. on Ja. 1 Par. 11 Act 129. Ja. 3 Par. 1 Act 5. Ja. 4 Par. 3 Act 27.  

ACT 167.  THis Act annexing all annualrents payable to Prelacies, to the Crown, is abrogated, in so far as concerns Bishops, by the Act restoring Bishops in anno 1606.  

ACT 168.  NOta, That such Customers and Searchers as cheat the Customs, are only punishable by Deprivation, and escheat of their Movables; and therefore it seems that they are mistaken who think that such may be punished by Death, this being an extraordinary Theft, both as to the value, the preparative, and the ordinary punishment not excluded.  
It may be likewise doubted, whether such as enter in Compacts with Customers and Searchers, to defraud the Customs, may be punished by the same punishment, because they are art and part.  

ACT 169.  REmissions are, notwithstanding of this Act, passed without previous Letters of Slayns, or consents from the parties, but the party may get an assythment, albeit the Remission be past, all Remissions are at present Registrated in the Thesaurers' Register, conform to this Act, and in the Secretary's Register also, as all Papers are that pass His Majesty's Hand.  
THough this includes the Members of the College of Justice in the privileges granted to the College of Justice with the Senators▪ yet of late by the 8 Act 2 Sess. 2 Par. Ch. 2. 
ACT 170.  Freedom from Impositions is renewed to the Senators only, vid. obs. on that Act, where it is Debated, that though Advocats be not there mentioned, yet they are not thereby excluded.  
IT would seem by the Narrative of this Act, 
ACT 172.  that all Patronages Gifted after this Act, should be discharged; and yet the Act discharges only such as are granted without the consent of the Beneficed persons; nor can I see how these Patronages should have been declared null, for want of the Beneficed persons consent, since the Benefi●'d person being once provided, the Kings Disponing the Right of Patronage, could not prejudge them who were already entered; though the Act says, That these Rights were granted to the great hazard of the persons provided, for they being once entered, no posterior Right could prejudge them, and Declarators upon prior Rights might have prejudged them however; but it seems that the reason why the consent of the living Incumbent is requisite, is, because it is presumable that he would, and could inform truly to whom the Patronage belonged, and in all Church Benefices, when Disponed, either the Demission, Resignation, or consent of Churchmen, has been thought requisite.  
The Statutory part of this Act was wrong Printed in Skeens Impression, for whereas it says, That all such Rights, where the Beneficod person was alive, and their consent had, and obtained thereto, shall be null: It should have said, Not had and obtained thereto; but this is helped in the last Impression.  
VId. Crim. Pract. Tit. Murder. But it is fit to add, 
ACT 173.  that this Act ordaining such as strick, or hurt a man within the King's Palace, to be punished with Death, is consonant to praetor cum l. sequen. ff. de injuriis. vide etiam l. 23. §. 2. ad leg. juliam de adulteriis; and to the Law of Nations, Fritz. de palatiis principum cap. 12. Where he citys as the Law of Scotland, cap. 6. Stat. Will. By which, he who draws a Knife in the King's Court, is to be struck through the Hand, and he that draws Blood is to lose the Hand, and he that kills any man is to pay twenty nine Cows to the King, and to assyth the party; which certainly is meant of a Slaughter committed, where the Killer should not die, as in accidental Slaughters, or Slaughter committed in self-defence, for otherwise that Statute had been ridiculous, as it is now obsolet and innovated by this Act of Parliament; and yet I think, that even by this Act of Parliament, he who strikes any man in self-defence, would not die; and if the King be absent, some think that Statutes punishing Offenders within the Palace, extend not to such cases, as Placa. l. 1. spit. delict. cap. 8. Though Menochius does extend those Statutes, even to that case; but to prevent this Debate, this Act 173, bears expressly The King's Palace where His Highness makes His Residence for the time, and it expresses the Inner-gate, to cut off the ordinary Debates, de consiniis palatii.  
Though this Crime may be pursued Criminally, yet the Lords may take a Precognition of it, to the end it may be known how far they will remit the same to be punished by the Criminal Judges, in so far as concerns the striking any man in their presence, as in Sir John Hay's ease and Sibbalds.  
VId. Crim, Pract. Tit. Remissions Vid. supra observe. on Act 74 Par. 14 Ja. 2. 
ACT 174.   
IT would seem by the Narrative, that only such Writs as were not Written by Notars and common Clerks, 
ACT 175.  who are notourly known, should have been declared null for want of the Writers Name; and yet the Statutory part declares all Writs to be null, without exception, which want the Writers Name.  
Observ. 1. This Act is not by the Lords found to annul Seasines, and other Acts of Office, Written by Common-clerks and Notars, though the Writers Name be not designed in them, but only Writs amongst private parties, June 6. 1634.  
Observ. 2. That though the Writers Name be not condescended on, yet the Lords will allow the User of the Writ to condescend who was the Writer; and though this Act of Parliament appoints that, before the inserting of the Witnesses; yet if it be insert in any place, it is sufficient: and though the Act appoints that it shall condescend upon the Writers Name, particular remaining place, and Diocy; yet Diocies are now only condescended on, in Instruments of Notars; but still there must be some Designation beside the Name and Surname, such as A. B. Servitor to such a man, which is sufficient; and if there be more of one Surname, who where Servitors at that time, yet is not the User of the Writ obliged to condescend which of the Servants it was, but he who offers to improve the said Writ, must relevantly allege that of the Date of that Bond, he whose Servant the Writer is Designed to be, had no Servant at that time who did write such a hand; and for proving of this, must produce the Hand-writs of all these Servants at that time, February 7. 1672. Kirk-hill contra Ketlestoun.  
IT was Debated upon this Act, whether the Lands of Duncow, 
ACT 176.  though here annexed by a public Law, were sufficiently annexed, so as to exclude the Earl of Nithisdale, who pretended that a year before this Act he had a valid Right, under the Great-Seal from the King, and so could not be prejudged by a posterior annexation, which behoved to be salvo jure quoad him: To which it was Replied, that this annexation being by a public Law, was not of the nature of Ratifications, which were salvo jure; and such Acts of annexation were in effect the King's Charter, and being granted by a public Act of Parliament, in favours both of King and People, they could not be taken away, but by another Act of Parliament, & sibi imputet, he who had the prior Right, and compeared not at the time of this public Law, and objected it; but now after so many years, the King had at least prescrived a Right, by virtue of this Act, this case was not decided, but the Lords inclined to think that there was a great difference betwixt original annexations, where special Lands were annexed, as falling in the King's Hands by a special Forefalture, or other cause which they thought could not be quarrelled by the Session, or other Inferior Judicatory; and general Acts where Lands formerly annexed, are only repeated, such as this is, in which Lands belonging to private parties, may be by mistake repeated.  
Nota, The Lands of Duncow, annexed by this Act, came to the King upon Forefalture of Robert Lord Boyd, anno 1477.  
BEfore this Act, 
ACT 177.  Decreets pronounced by Magistrates within Towns could not be the ground of a Charge of Horning, till a Decreet conform had been first obtained before the Lords; but by this Act, Letters of Horning are summarily appointed to be granted upon such Decreets.  
It is observable, that though this Act says, That Letters of Horning shall be granted upon the Decreets of Burrows in the same way as upon the Commissars Precepts; yet it would seem that Commissars had no such privilege at the time of granting this Act; for that privilege is only granted them by the 7 Act 21 Par. Ja. 6. To which nothing can be answered, but that Commissars had that privilege, even at the time of this Act de praxi, though the jure it was only granted them by that Act for their further Security.  
VId. Act 155. 12 Par. Ja. 6. 
ACT 178.   
THis Act giving the King twenty shilling of Custom of every Tunn of imported Beer, 
ACT 179.  is Explained in the Observations upon the 2 Act 4 Sess. Par. 2 Ch. 2.  

ACT 180.  IT is observable, that by this Act the Dean of Gilled is founded in the power of judging all Cases betwixt Merchant and Merchant, and is here declared to be the most competent Judge, because the most knowing Judge in such cases, and declared to have the same power that the like Judges have in France and Flanders, and in France such Cases are Judged by these who are called les consuls des merchants. The Lords have found that according to this Act, the Dean of Gilds Court is a Sovereign Court in suo genere, and not subordinat to the Towns Court, July 21. 1631. and they use to Advocate Causes from the Admiral, to the Dean of Gild's Court, upon this Act, it being declared that he is Judge to all actions betwixt Merchant and Mariner, though it be alleged by the Admiral, that these general words should be restricted by the nature of the respective Jurisdictions, and so the Dean of Gilled should be only Judge competent betwixt Merchant and Mariner, in cases which fall out at Land, but not at Sea.  

ACT 181.  THe Act related to here is the 36 Act 3 Parl. Ja. 4.  
IT is observable from this Act, that it is there declared in geneneral, 
ACT 182.  that Acts of Parliament should only in reason and equity extend ad futura, for regulating future cases; for though Declaratory Acts may ofttimes extend ad praeterita; yet Statutory Acts should only extend ad futura.  

ACT 183.  THis Act differs not one word from the 170 Act of this same Parliament, and has been only repeated here by mistake.  

ACT 184.  BEfore this Act, such as were at said with one another, used ordinarily to fight together upon the Street of Edinburgh, and used to beat the Magistrates, or their Officers when they came to red them, and that truly gave rise to this Act, though the Narrative here bears only, that several persons used to Deforce the Magistrates in their Execution of their own, or the Councils Decreets.  
By the Act it is declared, That whosoever disobeys, or opposes the Command of the Provost and Bailies of Edinburgh, when they are Executing the King's Commands, or Letters from the Secret Council, or Session, or the Ordinances of their own Burgh, shall be punished as Committers of Deforcement, as Seditious and Perturbers of the Common well.  
It has been found that naked assistance at such Tumults, without Arms, is not punishable by Death, though a person be killed in the Tumult, December 1666. But Convocation at all such Tumults with Arms, is punishable by Death, if a person be Murdered, as was found, September 11. 1678. And the acting any thing, either by word or deed, was found to infer Death.  
Observ. That the using Fire-weapons within Town is discharged by this Act; and long weapons, that is to say, Halberds, Picks etc. are only allowed, lest innocent persons passing on the Street might be killed, but yet if Soldiers shoot in defence of their Prisoners on the Streets, they are not punishable; and this Act was found not to militat against the Kings granting Commissions to the Magistrates of Edinburgh, to raise a Company with Firelocks within Town; for the Act discharges only Firelocks without the King's consent, and a Commission implys his consent.  
THe Act here related to is the 159 Act 12 Par. Ja. 6. 
ACT 185.   
THis Act is Explained in the 7 Act 9 Par. Ja. 6. 
ACT 187.   
VId. Obs. on the 29 Act Par. 11 Ja. 6. 
ACT 189.   
THe Abbacy of Dumsermling was Disponed by Ja. 6. in a morning Gift to Queen Ann. 
ACTs 190, & 191.  This Lawyers call Morganeticum; and King Charles the First was Infeft in these Lands, as heir to His Mother.  
Observ. That this Confirmation was under the Great Seal, and under the Seals and Subscriptions of the States.   

King JAMES the sixth, Parl. 14.  
THis Act seems very ill conceived, for it appears that wilful hearers of Mass shall be executed to the death, 
ACT 193.  how soon they shall be found guilty, or declared Fugitive, since no man by our Law dies upon his being Denunced Fugitive, except in the case of Treason; and wilful hearing of Mass is not Treason, even by this Act.  
Observ. 2. That as this Act is conceived, the wilful hearing, or concealing, is punishable by death, either by Conviction, or being denunced Fugitive before the Justice-General, or the Lords of Privy Council.  
Observ. 3. That wilful hearers are only punishable, and the word wilful was added, because many go to the Mass out of curiosity, or may be present by accident, and in all things that concern Religion, special Heresy owning and continuing, makes the Crime ubi haerent dogmatibus suis; and therefore the Defender may purge himself by his Oath as to his intention, which cannot be otherways proven; and a fortiori, I think this should hold with these that are present at Conventicles, either in Fields or Houses, since these are less Crimes; for they being men of known good Principles, may go to get intelligence, or from curiosity, but it is safer to intimat this previously to some of the King's Servants.  
Observ. 4. It is generally observed, that all these Acts concerning the Mass, were of Design ill conceived by Chancellor's Seton's influence, as is reported, and that by them this Crime can never be proved, since it can only be proved, per socios criminis, and these cannot be admitted Witnesses; but this is a mistake, for there may be many present out of curiosity, or the apprehenders may be Witnesses, and even such as were present upon design in criminibus occultis, may be received; since when Law allows any thing, it must allow the means by which it can be proved; and in Heresy, less probation is sufficient, than in other Crimes, Clarus § Heresy, num. 20.  

ACT 194.  BY this Act the Liferent-escheats of Papists being denunced, are declared to belong to the King, though ordinarily the Liferents fall to the respective Superiors; this is again renewed to the King, Act 197 the same Parliament.  

ACT 195.  ALL Erections of annexed Property of the Temporalities of Benefices, are here declared null, except as to the Lands excepted in the Act of Annexation, 1587. which it seems must be understood, even though Dissolution proceeded; for otherways there needed not an Act of Parliament, since all Dispositions of annexed Property without Dissolution, are ipso jure null; but thereafter all such Erections are for quieting the minds of His Majesty's good Subjects secured and confirmed at the Restauration of Bishops, Act 2 Par. 18 Ja. 6.  

ACT 196.  COmmon Kirks are such as belong in Common to all the Dignities of a Chapter, and whereof each of them had a part of the Stipend; to which common Kirks the Chapter did not present as Patron, but did nominat and collate; upon the first suppression of Popery they were to be conferred to Ministers as ordinary Benefices; and the King, or such as had Right from him, became Patron, as coming in place of the Popish Clergy: and by this Act they are ordained to be presented by the ordinary Patrons to Ministers who shall serve the Cure; and the reason is, because there was not then Chapters: But by the 2 Act 22 Par. Ja. 6. the said's Chapters are likewise restored to whatsoever Teinds, etc. which pertained of old to the Chapters in common.  
THis Act ordaining the Escheats and Liferents of Excommunicated persons to be null, if granted to their near relations, 
ACT 197.  seems supers●uous, because the same was formerly Statuted in general by the 145 Act 12 Par. Ja. 6. Nor find I any difference betwixt the two Acts, save that the Escheats of other Rebels are by that Act declared null, if purchased by their Friends, or well-willers; and this Act declares only the Escheats of Excommunicated persons null, if granted to their Bairns, or conjunct persons, so that it seems the Escheat of an Excommunicated person could not be declared null, though Gifted to a confident person, since a confident person and a conjunct are different, for Blood only makes conjunct persons, but trust makes confident persons.  
VId. observe. on 83 Act 6 Par. Ja. 4. 
ACT 198.   
THough by this Act, when Manses and Gleibs are designed out of Church-Lands only, 
ACT 199.  the rest of the Heretors of Kirk-lands are to contribute for the relief of him, out of whose Lands the Designation is made; yet this was extended in anno 1644. by Act of Parliament, for the relief of these, out of whose Temporal Lands Designations were made, who were therein to be relieved by the Heretors of other Temporal Lands. I find that Lands mortified to Colleges cease not thereby to be Kirk-lands; and therefore were found liable to relief as other Kirk-lands by this Act, February 12. 1635. But Dury observes there, as the reason of the Decision, that these Kirk-lands were Feued by the College for a small Feu-Duty; and therefore it was more just that they should have been liable to relief, as other Kirk-lands; and so it may be yet doubted, it Kirk lands mortified to Colleges, and remaining with them, would be liable to this relief.  
BY this Act no ●enesie'd person under a Prelate, 
ACT 200.  may set longer Tacks than for 3 years, and a Bishop is allowed to set Tacks of his Tiends for 19 years, and an inferior Prelate for his Life-time, and 5 years thereafter, Act 4 Par. 22 Ja. 6. But because some thought that that Act did abrogat this Act, as if Prelates needed not the consent of the Patron to such Tacks for nineteen years, or five years respective; therefore it is expressly declared by 15 Act 23 Par. Ja. 6. and even these and all other Tacks shall be null, if they be set for longer than three years, without consent of the Patron, and that the 4 Act Par. 22. did still presuppose the consent of the Patron, though it was not there expressed, which was most just, for since it is the Patron's interest▪ that the Cure be well administrat, and that he may get an able man after the Incumbents Death; it was just that nothing should have been done without his consent, and for that reason, Clericus nee resignare nec permutare nec pensione onerare potest invito patrono; as is by the Canon Law, for by that Law, the administration belongs to the Patron, nec ab ejus dispositione anferri possunt, Can. rationis, 16. q. 7. and by that Law he was to be alimented out of the Rents of the Benefice, if he fell poor, and the person presented was to give his Oath to the Patron, for preservation of the Temporals.  
This consent may be adhibite by the Patron, either before, or after the setting of the Tacks, c. 20. de jur patron▪ dubitatur; whether a Patron may lawfully authorize a Tack set in his own favours, since his accepting is equivalent to a consent, and he cannot be author in rem suam.  
Though Tacks set for longer space than three years be null by this Act; yet if they be set for longer time, they will be sustained, if the Tacks-men restrict them to three years allanerly, July 18. 1668. Johnstoun contrà Howdoun, even as though a Bond wanting Witnesses be null, if the same exceed an hundred pounds, yet it will be valid if restricted to an hundred pounds, and this seems to be received with us as a general principle in the interpretation of all Statutes, both as to time and sums; and therefore though by the 36 Act Par. 3 Ja. 4. Tacks of the Rents of burgh's be declared null, if set for longer space than three years, yet by the same reason, they should be sustained, if restricted to three years.  

ACTS 201, & 202.  THese Acts are Explained in the 36 Act 2 Par. Ja. 6.  
THe design of this Act has been, as I conceive, to secure such as had intrometted with the Kings annexed Property summarily, 
ACT 203.  by virtue of the 41 Act 11 Par. Ja. 2. Because it is probable the Warrant granted by that Act; was thought dubious, and somewhat severe in the Analogy of Law, vid. observe. upon that Act. A Provost is in our Law no Prelate; and therefore Tacks set by him are null, without consent of the Patron, Hope Tit. Kirks.  

ACT 204.  THis Dissolution of the Kings annexed Property has several specialties in it, as that it shall not extend to the setting in Feu-ferm of Castles, Forests, Coal-heughs, and Offices, etc. But that these shall remain inseparably annexed to the Crown; and from this it may be observed, that to this day, all Castles, Palaces, Woods, Parks, Forests, Pastures, Coal-heughs, and Offices, are to remain inseparably with the Crown; and therefore except they be expressly dissolved, they fall not under Dissolution: This part of the Act is renewed by the 235 Act 15 Par. Ja. 6. This Dissolution is likewise only in favours of kindly Tenants, and ancient Possessors, and of such as should pay their Composition betwixt and the first of August, 1595.  
THis Act is Explained, Crim. Pract. Tit. Injuries, num. 6. 
ACT 205.   
BY this Act the Duty granted by the States to the King upon Wines, is to be charged for by Letters of Horning; 
ACT 206.  and I find by Act of Council, February 21. 1581. That a Commission is granted to the King's Master-housholds, to break up the Doors of such Merchants, as refused to let the King's Servants Taste their Wines, to the end they might choose the best for the Kings own use, but this certainly presupposed that the King would pay for the Wines.  
FRom this and many other Acts, 
ACT 207.  it is observable that the Parliament may, and does by a general Law, annul Rights granted to private persons, without calling them, and without the hazard of the Act salvo, though any one private man's Right cannot be declared null by the Parliament, without citing him.  
BY this excellent Act, 
ACT 209.  a Horning or Escheat following thereupon, cannot be taken away, and declared null upon acquittances and Discharges, which were alleged to be prior to the Horning, so that the Escheat could not fall, the Debt being paid, except the producer of the Discharge make Faith that it is of a true Date, because such Discharges with ante Dates, use to be granted by the Creditor when himself is paid.  
It has been doubted whether Assigneys be bound to swear in this case, but since this is factum alienum, which they are not obliged to know; and if this be necessary, the Cedent by refusing to swear, may destroy the assignee; but yet the Act of Parliament obliges indefinitely the producer of the Discharge to swear, and so it seems whether he be Cedent or assignee, he is still bound, since his Oath is solemnly required by Act of Parliament, Quaeritur, whether it can be remitted to Quakers, Anabaptists, etc. who think swearing unlawful.  
THis Act giving many privileges to the King's Forests, 
ACT 210.  seems not communicable to all Forests, though it be pretended that all Forests are the King's Forests, it having been very ordinary to erect Forests in private men's Lands, in imitation of the King's Forests; but because these Erections of Forests were very prejudicial to Neighbours, since they might fine their Neighbours, and poind their Beasts; therefore the Lords of the Session did in July 1680. give their opinion to the Lords of Exchequer, that all such new Erections should be stopped; and it appears to me very clearly, that all Forests are not the King's Forests, by comparing cap. 17. leges forrestarum, which Treats of Crimes committed in the King's Forest, with cap. 21. which Treats of the Delicts committed in the Forests of Barons, and wherein they are Infeft, cum libera forresta.  
Observ. 2. That that part of the Act which ordains all that Hunt within six miles to His Majesty's Castles, Woods, Parks, or Palaces, to be fined in an hundred pounds, is in Desuetude; and it seems then only to be observed, when the King Himself Dwells in his Castles, and uses actually to Hunt in His Woods or Forests; this Act bearing, To be made for His own Royal Pastime, or at least this privilege should not be continued to Castles, or Forests, which the King has Disponed to private Subjects.  

ACT 212.  VId. observe. on the 13 Act Par. 3 Ch. 2.  

ACT 213.  THough this Act say, That the Lords of Session were not obliged to sit down till nine a Clock; yet it appears clearly, that they were obliged to sit down at eight by the 49 Act 5 Par. Ja. 5.  

ACT 214.  IT is observable from this excellent Act, that where Evidents are not thought necessary to be kept, there is no reason to grant Certification against them, after many years; and therefore the Lords refuse oft times to grant Certification against the Grounds and Warrants of Appryzing, such as Executions, though they cannot be produced after twenty or thirty years, ex paritate rationis, though the Act secures only against the not producing of Procuratories, and Instruments of Resignation, and Precepts of Seas●nes; and July 1680. Strowan contra Earl of Athol: This Act was extended to secure against the production of the Decreet of Compryzing, and Decreet whereupon it was led, albeit this extension seems dangerous, since thereby great Estates may be carried away by null Compryzing, and small Debts, which might be satisfied by less than a years intromission, whereas none or small prejudice can be inferred from not producing Instruments of Resignations, etc. It is observable that this privilege 〈◊〉 ●ot being obliged to produce such Papers, is only allowed to such as are, and were in Possession for forty years.  
There is likewise in this Act a presumptio juris founded, that these from whom Lands are Appryzed, will industriously abstract their Evidents, and therefore the Lords use to be very favourable in granting Certification against Compryzers.  

ACT 215.  THe Act salvo jure is still subjoined to Parliaments, except here where it is insert in the midst of the Acts of this Parliament.  
BY this Act, Lords of the Session, Advocats, Clerks, Writers, 
ACT 216.  and their Servants, nor no other Member of the College of Justice, nor no Judges, Clerks, etc. of inferior Courts, may take Assignations to Pleys, which is conform to the Civil Law, lib. 2. cod. tit. 14. ne liceat potentioribus patrocinium litigantibus praestare vel actiones in se transfer.  
Nota, The Right taken by them is not declared thursdays, but themselves only punishable, and the reason seems to be, because when they are deprived from being Members, the advantage they had over others, is taken away, and which advantage was the reason inductive of this Act, nor should the punishment be extended beyond the Cause, which is also conform to the opinion of the Civilians, vid. vin select Quest. jur. cap. 1. But it may be doubted if he who takes such Assignations, should not be liable to resound the damnages which are occasioned by taking such an Assignation, since it is a principle, that Damnage is still due where the injury is done to any man against a positive Law, though that Law ordain not Damnage and Interest to be repaid; and in this case the taking such Assignations is declared unlawful, and so an injury is done against a positive Law.  
2. Without this the party injured is not repaired; for though the public Interest, vel vindicta publica, be repaired by the Deprivation; yet the interest of the person lesed, which is chiefly to be considered is not.  
3. Deprivation is ofttimes no punishment, and seldom a Commensurable Punishment; for many Members of the College of Justice lose nothing by Deprivation, and a Plea may be worth a great sum, and their Employment worth nothing; whereas Damnage as it is a natural, so it is a most Commensurable Punishment. Because this Act Discharges only Members of the College of Justice to buy Plea's; Therefore it is still lawful for them to take Assignations to Plea's gratis, as a Donation, July 30. 1678. for as this falls not under the express prohibition of the Act; so it is no● presumable that they will be as keen in pursuing such Processes, as these for which they have paid out Money; nor were it just to make the Members of the College of Justice incapable of their Friends and Relations Liberality.  
By this Act Advocats Servants do pretend they are Members of the College of Justice, because this Act says, their Servants, and other Members.  
Though this Act and the Rubric Discharges only the buying Debateable Lands, Teinds, or Possessions, and speaks nothing of Movables, nor even heritable Bonds, mobilia, being ordinarily accounted vilioris naturae; yet the Lords do now ob paritatem rationis, extend this Act to such as take Assignations to Movable Debts, or any other debateable Rights.  
This Act uses to be so Interpreted, as to be extended only to the Members of the respective Courts, who take Assignation, to Plead before the Court where they serve; and thus if an Advocate should take an assignation to a Plea, depending before an Inferior Court, it may be urged that this Act should not reach them, because he has not influence before that Court; but if he should go and Plead before that Court, as an Advocate may before any Court, than the Act would reach him also.  
Item, Though this Act does not speak of Procurators before Inferior Courts, yet the word Advocats, seems to comprehend them.  

ACT 217.  BY this Act Caution is to be found in actions of Ejections, for the violent profits; and though cautio juratoria, be ordinarily sustained, where persons cannot find other Cautioners, yet it is not sustained in this case, July 17. 1630. Because this Act says, that by the proponing of these Defences against Ejections, delays are granted; therefore the Defender, either in Remove, or Ejections, is not obliged to find Caution, where the Defence can be instantly verified; and although it has been doubted, whether this Caution is to be found at the proponing of the Defence, or at the first Term assigned by the Act; yet it is clear that the Caution should be found at the first Term assigned by the Act, both because this Act says, that the Caution shall be found at the first Diet of ●itis contestation; and because there must be some time given to find Caution.  
Nota, That in the Brieves of Dissasine, which was the same thing of old, that Ejection is now, Caution was to be found as here by the Defender, Quon. Attach. cap. 53. num. 2.  
For clearing some mistake in the Printing of my Criminals, pag. 294. my meaning was, that there may be Perjury in cautione juratoria, as for instance, if a person should Depone that he could not find Caution for the violent Profits; and yet it could be proved, that such a person who was very responsal, offered to be Caution, this I think would infer Perjury  
BY this Act it is appointed, that twenty days after the Parliament is proclaimed, 
ACT 218.  and before it meet, four of every Estate should meet to receive Articles to be presented to the Parliament, but this is now in Desuetude; for no State can now meet, except the Burrows, and yet sometimes the King writs down to call whom He pleases to name to meet and consult previously, what Laws are fit to be made in the future Parliament.  
By this Act also it seems that nothing can be presented in plain Parliament, by any of the Members of Parliament, but that every thing must be first presented in the Articles for eviting confusion, and this Act was made use of to that purpose in the Parliament, 1674. against a proposal made then for having a Committee of grivances. To which it was then answered, that the Articles being but a Committee of Parliament, they could not restrict their own Constituents, and this Act was rather directive than restrictive.  
THis Act is fully Explained, 
ACT 219.  crim. pract. tit. Jurisdiction of the Lords, num. 7.  
THis Act is explained, crim. pract. tit. Parricide. 
ACT 220.   
THis Act is formerly Explained, 
ACT 226.  15 Act 4 Par. Ja. 5. where Liferenters are to find Caution.  
By this Act also, a power is granted to the Magistrates of burgh's, to cause repair Burnt and Waste Lands; but yet ordinarily the Magistrates of Burrows use to give in Petitions to the Council, craving liberty to force the Heretors of such Burnt Lands, to repair their Burnt Lands themselves, or else to sell their part, and when there are many small Heretors concerned, the Council grants Warrant to the Magistrates to regulat their Venditions, though I know it hath been alleged that the Council could not do this, because it was an Inversion of Property, and that this was only competent to the Parliament; and yet the Council have still been in use to do so for the common good of the people, nor is any man a loser, since he may repair by himself, and if he will not, he gets his just price. This was granted to the Magistrates of Edinburgh in anno 1678. publice enim interest ne civitatis aspectus deformetur & ideo constitutum est, l. 4. C. de jur. reipub. aream collapsam posse a fisco distrahi si proprietarius monitus eam reficere non curaverit, vid. l. 46. ff. de dam. insect. I have seen a Decreet in anno 1636. at the Town of edinburgh's instance, against several Heretors, before the Lords of Session, for ordaining the Heretors of these Houses (upon which the Trone-Church now stands) to denude themselves of their Right in favours of the Town, ob utilitatem publicam, and to appoint four for them, and four for the Town, for valuing the Lands, that the price may be paid accordingly.  
But to prevent all such Debates, it is appointed by the 6 Act 3 Sess. Par. 1 Ch. 2. That the Magistrates of burgh's Royal shall cause cite all such as pretend Right to any such Waste or Ruinous Lands, as have not been inhabited for three years, or shall be waste and not inhabited for other three years, to Repair the said's Lands, with Certification to them that if they do not, the Magistrates will cause value the same by certain persons to be chosen for that effect, and to sell the same; which sale shall never thereafter be quarrelled: So that it appears that after this Act, the Privy Council can grant no Warrant to sell, except in the Terms of this Act, at the least they cannot grant any such warrant to build or sell upon any private account, or even for beautifying the Town, but the Privy Council has since this Act, granted a Warrant to force private Heretors to sell and accept their price, for making the Entry to the Parliament-House more large and convenient, though it it was alleged that this could not otherwise be done than after three years, and in the way prescriv'd by the Act of Parliament, which has made no exception of any such case as this, and if the Council could do this, they might as well have made the Act of Parliament itself; for the power granted to Magistrates by Act of Parliament proceeds upon the same motive of public Good.  
It might likewise have been alleged that whatever the Council might have done in cases of absolute necessity, as if the Parliament-House had wanted an Entry altogether; yet they could not invert Property merely for the conveniency of enlarging the Entry, beyond what formerly served in our Predecessors time.  

ACT 227.  BY this Act Chiefs of Clans are not made liable, but all Landlords and Bailies are obliged to make their Men-tennents and Servants answerable to Justice, and to redress the party skaithed; which Obligation is not alternative: and therefore the Council in the case of Leith and Grant, August 1680. did find that the Landlord was liable for the Skaith, though he should present his men.   

King JAMES the sixth, Parliament 15.  
BY this Act Bishops are in effect restored to sit in Parliament, though the Act is cautiously conceived in favours of Ministers, 
ACT 231.  who shall be provided to Bishoprics by the King; but yet the Bishops themselves were not restored to their Jurisdictions in spiritualibus, till the 2 Act 18 Par. Ja. 6. in anno 1606. This Act gave occasion of calling a General Assembly at Dundee, to whom the King proposed several Overtures, and it was condescended on, that fifteen Ministers should sit in Parliament, because so many Re-presented the Church in time of Popery, but remitted to a Committee to consider what Revenue each Churchman should have for defraying that expense, and who should be elected.  
In this Act likewise it is declared, That this Restitution shall be without prejudice to the General and Provincial Assemblies, and Presbyteries; and the Act of Parliament here related to Establishing these, is the 114 Act 12 Par Ja. 6.  
IT is observable that Kirk-yeards have in many things in our Law the same privilege as Kirks; and therefore the kill, 
ACT 232.  or wounding of men within Kirks, and Kirk-yeards, are punishable in the same way, 118 Act 12 Par. Ja. 6. and the Raiser's of Frays in Kirks and Kirk-yards, are punished in the same way, 27 Act 11 Par. Ja. 6. and by the 83 Act 6 Par. Ja. 4. Fairs and Mercats are prohibited to be kept within Kirk-yards, as well as within the Kirk: as also by the 86 Act, Quon. Attach. Courts Civil or Criminal within Kirks, or Kirk-yards, are forbidden; all which is conform to the Canon Law, cap. 5. de immunitate ecclesiarum & cap. 2 h. t. in sexto decretal. By this Act Letters of Horning are to be directed by the Lords of the Session, for bigging of Kirk-yard-dykes, and for making Styles and Entries to Kirks and Kirk-yards. By which last Clause, it would seem also that Heretors would get Letters of Horning against any Heretor who lies betwixt him and the Kirk, to give him a sufficient way to the Kirk through his Land, albeit the words bear only, That there shall be sufficient Styles and Entries in the said's Kirk-yard-dykes: But when any thing is allowed in Law, all is understood to be allowed, without which, that which is expressly allowed cannot be useful: Yet I find by a Decision, June 27. 1623. betwixt Neils●n of Carcassi● and the Sheriff of Gall●w●y, that the Lords refused to grant a Servitude through a private Man's Lands, even for a way to the Church, except the Pursuer could prove immemorial Possession; and to reconcile this Difference, it seems that every man must have some way to the Church, but that he will not have Right to any special way, if he seek the same upon the account of nearness, except he can prove immemorial Possession, Mornatius ad l. penult. ss. de just. & jur. shows that this Law is observed in France, Quaeritur, to whom a Coal found in a Churchyard, or Trees growing there, will belong, whether to the Heretor, the Poor, or the Patron, or if the Trees will belong to the Minister.  
THis Act declares all Alienations of the annexed Property to be null, 
ACT 233.  except where they are set with augmentation of the Rental; and therefore to this day, there is still some small augmentation made; but it has been doubted, whether if the Charter bear an augmentation; but yet it can be proven by the Exchequer Rolls, that the Lands paid more formerly than is expressed in the new Charter; if in that case the alienation will be null, and I conceive it should; for though the Fever may allege that he was in bona fide, because of the former Charters; yet seeing the hazard by this Act of Parliament, he ought to have looked to the Exchequer Rolls.  
I find the 233 and the following Acts till 240. of this 15 Parliament of King Ja. 6, were at first Statutes of Session inserted in the Books of Sederunt, upon the 14 of March 1594. and here in 1597. they are turned in Acts of Parliament, without mentioning that they had been Acts of Sederunt formerly, as uses to be done when the Parliament Ratifies such Acts; it seems that it was rather the Exchequers part than the Sessions, to have Regulated the King's Revenue and Property, whereunto all the above cited Acts relate; but about this time, I find in the Sederunt Book, several Acts engrossed, bearing to have been made by the Lords of Secret Council, Session, and Exchequer, met together, which is like the several Chambers whereof the Parliaments of France consist, who conveen all together when any solemn arrest, or Decision is to be pronounced in purpuris, as they call it; and these Acts being Declarations of what was Law in relation to the King's Property: It was more proper for the Session to have made such Acts, than for the Exchequer, who raise the King's Rents conform to Law, but declare not what is so.  

ACT 234.  THis Act declares that all alienations of the annexed Property are null, if they be set otherwise than in Feu-ferm; and therefore if any part of the annexed Property be Disponed to be holden Blench, or Ward, the alienation is null: and I conceive the true reason to be, because originally the annexed Property was allowed to be Disponed; for improving His Majesty's Rent, which cannot be, except where there is a yearly Rent paid; and albeit sometimes the King and Parliament may dissolve the annexed Property in order to a Disposition to be made to a person who has deserved well of the King and Estates, in which, the improving His Majesty's Revenue is not designed; yet the general nature of Annexations ought not to be altered upon such accidental accounts.  
THis Act annulling all Rights of the King's Castles, Parks, Coal-heughs, 
ACT 235.  etc. being annexed, was formerly Statuted, 204 Act 14 Par. Ja. 6.  

ACT 236.  THis Act is fully Explained in the 41 Act 11 Parliament, Ja. 2.  

ACT 237.  THis Act declares that the Assize Herring is a part of the annexed Property, and so cannot be set in Tack, nor Disponed; Assize Herring is a certain measure of Herring due to the King out of every Boat; and the meaning of this Act is, that it cannot be set in Tack without a competent Duty, for it is set in Tack for a just avail, and could not be well otherways Collected; but this being a Casuality, it is jactus retis, and so except the Duty be almost elusory, it is hard to quarrel it; ex hoc capite, they were formerly annexed by the 176 Act, 13 Par. Ja. 6.  
THis Act Discharges all Offices of heritable Chamberlainries, 
ACT 238.  and all free Gifts and Discharges of the King's Property; but to cheat this Act, the Fevars suffer the bygones to lie unpaid, and then obtain Discharges, or else they obtain Tacks of their own Feu-duties for payment of a small and simulat Tack-duty, called by the Romans as. Cassianus.  
BEcause the annexed Property could not be Disponed without Dissolution; therefore some to cheat these excellent Laws, 
ACT 239.  obtained Dispositions of the Feu-ferms payable to the King, for payment of a Feu-duty; and therefore these feudisirmae feudisirmarum are here discharged and annulled.  
THese Acts are formerly Explained in the Act concerning the thirds of Benefices, viz. Ja. 6 Par. 1 Act 10. which are now obsolet, 
ACTS 240, 241 & 242.  Ministers being otherways provided.  
OBserv. That Acts of Parliament are to be observed by the Lords of the Session, 
ACT 243.  except they be particularly abrogated in express terms, vid. Gen. obs.  
THis Act is now useless, 
ACT 244.  Ministers being otherways provided.  
ALL Vassals are obliged to Exhibit their Evidents to their Superior, not only by Improbations, but in Exhibitions; 
ACT 245.  though in Law nemo tenetur edere instrumenta contra se; and the reason of this Speciality is, because the Superior is dominus directus, and so has a true interest in the Land; and if the Vassal pretend any interest, he is obliged docere de titulo, to show his interest, and to instruct the Superior in what is due to him; and the King in our Law is presumed to be Universal Superior of all Lands; and therefore may by a Proclamation, or by way of Action, or by a Statute, as here, ordain all Evidents to be produced betwixt and such a day; but nothing save a Statute or Improbation can declare the Evidents to be null, if not produced as here; and since an Improbation could not be universal, this Statute was necessary in these times, when His Majesty's Revenue was not established, nor known.  
Feus' are declared null for not payment of the Feu-duty, 
ACT 246.  either by the Clause irritant contained in the Infestments, declaring that if two Terms run, the Feu shall be null; or by this Statute declaring that if the Feu-duty be unpaid for two years together, the Feu shall be null: But there is this difference betwixt Irritancies upon this Act, and these contained in the Infestment, that the Irritancy upon this Act may be purged at the Bar, but Irritancies upon Clauses in Infestments cannot be purged at the Bar, because they are incurred by paction betwixt parties, which the Lords cannot alter; for the Superior having given out the Feu upon that express condition, it is not just to alter what was expressly Treated amongst parties, December 1. 1664. Laird of Pourie contra Hunter. But yet I see no reason for this distinction, since this Act appoints expressly that they shall be null, in the same manner as if there were a Clause irritant contained in the Infestment, nor do I see how the Lords can alter what is so expressly introduced by a clear Statute.  
If offer was made of the Feu-duty, but refused, yet this will not be sustained when Reduction is pursued ex hoc capite, except it be instantly offered of new at the Bar; nor will a Term be allowed for purging, as was found in the former case, in which the Lords also inclined to think that compensation will not be sustained to take off this irritancy; for though Compensation tollit debitum, yet there is a reverence due by the Vassal, and which is considered more than the value of the Feu-duty itself; but yet if the Vassal come and offer humbly to his Superior, before the Term of payment, Compensation of as much as is due to him in payment of the Feu-duty, Quaeritur, if this will not be sufficient, it may be doubted whether a minor will be restored against the not payment of his Feu-duty, since it is not just that the Superior should be prejudged by the minority of his Vassal, or that the nature of the Feu should be thereby inverted; and it may be also doubted whether this irritancy will be incurred by him who was hindered vi majori from payment, as by being taken and detained Prisoner, or carried to remote Countries, since by the Feudal Law in other cases, this does excuse a mora, and from all the inconveniences that follow upon it.  
4. It may be doubted if this legal irritancy will be incurred where the Charter bears another special penalty and Certification, in case of the Vassals failyie in payment of his Feu-duty, without substituting the same in the room of the Legal one, or expressly renuncing it.  
5. Quid juris, Where there are more Heirs-portioners, if the failyie of one of them will prejudge the rest, seeing quoad the Superiority, he is obliged to own none but the eldest Daughter.  
6. If an offer made of the Feu-duty, not by the Vassal but by a third party, will stop this caducity, seeing the Feudal Obligation on the Vassals part is a personal Recognizance, and aught to be performed personally: and on the other hand these irritancies are unfavourable, and ought not to be extended.  
7. Quaeritur, If the Vassals offering Feu-duties for years yet to run, if that offer will hinder the incurring the irritancy for these years, seeing a Debtor may in Law pay before his day come; and what if it be such a Prestation as must be performed yearly.  
8. If the Vassal will amit his Feu, for not offering where he had a pretext to doubt who was his true Superior, and what he is to do in that case.  
So much use the Lords to favour the Vassal against such severe irritancies, that a Retour bearing in the first part of it, an irritancy for not payment of the Feu-duty si petatur tantum, they allowed the Vassal to purge, though in the posterior part of the Retour, these words were omitted in the Clause irritant itself, February 18. 1680. Earl of Mar contra his Vassals.  
Like to this irritancy was that of the Civil Law, whereby non solutio pensionis per biennium in civil Emphiteusi & per triennium in Emphiteusi Ecclesiastica efficiebat ut Emphiteuta a jure suo caderet; by the Civil Law the irritancy & mora in not payment, was not purgeable, but by the Canon Law it was.  
In Tacks also with us, the not payment of a Tack-duty for two years or terms infers an irritancy, November 23. 1609. Murray contra Nisbit. March 9 1611. Seton of Baro contra Seton of Pitmedden, which is also conform to the Civil Law, l. 56. ff. locati.  
THis Act is Explained crim. pract, tit. Usury. 
ACT 247.   
BY the 18 Act 1 Par. Ja. 6. 
ACT 248.  The bearing and shooting with Culverings or Daggs, without the King's Licence, is forbidden under the pain of losing the Right Hand; and that Act is here Ratified, and thereto is added Confiscation of Movables: and by the Act 6 Par. 16 Ja. 6. It is appointed that the Contraveeners of these Acts, may be pursued, either before the Council or the Criminal Court, and when they are pursued before the Council, it is provided that they shall not lose the Right Hand.  
It may be argued from this Act, that where there are two punishments appointed by two different Laws, the last is not added to the first; but either it antiquats the first, or else either of the two can be only regularly inflicted, for else this Act needed not say, s●●a that the ane pain shall not stop nor stay the other.  
From that 6 Act 16 Par. It may likewise be observed, that the Secret Council are not Judges competent to Life and Limb, such as the amputation of the Right Hand. By the Lex Julia It was lawful to carry Arms without Rome, but not in the Town, but they were every where thereafter Discharged, Tit. 46. lib. 11. C. ut armorum usus inscio principe interdictus sit.  
BY this Act is Ratified an Act made at Dundee, by the King, 
ACT 249.  His Nobility, Council and Estates, which was an Act of the Convention of Estates, for the Convention of Estates ordinarily considered the matter of Coinage; nor needed that a Parliament, because Coinage is a part of the Prerogative; and by the Estates there were meant some of every Estate, taken by the King for advice.  
From this Act it was urged in the Lord Hattons case, That 1. By this Act it is clear that we had a different Standard from England, which is to be eleven penny fine.  
2. That it was lawful to melt down current foreign Coin, because this Act allows it to be used as Bullion.  
Nota, This is the first Act that mentions the General of the Mints Office, as different from the rest.  
BY this Act it is clear that the Convention of Estates made Acts also discharging the Transportation of Wool and the like; 
ACT 250.  and this Act as to Wool is again Ratified, but a power is allowed to the Exchequer to Transport Wool (contrary to this Act) Act 40 Par. 1 Sess. 1 Ch. 2. But even this Act discharges only bypast Licences, but not Licence for the future, for these are allowed even for Wool by the 254 Act of this same Parliament.  

ACT 251.  BY this Act Customs are declared to be due to His Majesty of all that is brought in from foreign Nations; and by the 27 Act Sess. 3 Par. 1 Ch. 2. The ordering and disposal of Trade with foreigners, is declared to be His Majesty's sole Prerogative; and therefore some think His Majesty may impose upon foreign Commodities what he thinks convenient; for since he may discharge the Trade, if He pleases; it seems to follow, that He may burden it as He pleases.  
By this Act an a, b, c. of the Customs is to be put upon all Commodities, that is to say, a particular index of the several Customs imposed upon every several Commodity, is ordained to be made according to the Letters of the Alphabet, and this has varied in several ages; the present a, b, c. being made by order of the Parliament 1661. vid. statut. David. 2. cap. 12. num. 3. where this privilege as to paying of Customs, is formerly declared; and by the Canon Law this was likewise declared lawful to Princes, vid. perez. ad lib. 10. C. tit. 18. num. 13. & l, 5. C. de jure fisci, where it is said, officialibus v●lentibus ea capere debet acquiescere.  
From these words of this Act, Albeit it cannot be denied that His Majesty is a free Prince of a Sovereign power, havand als great Liberties and Prerogatives be the Laws of this Realm, and privilege of His Crown and Diadem as any other King, Prince, or Potentat whatsoever: It is observable, that our Kings are here acknowledged to be absolute and Sovereign Monarches, as is likewise more fully declared by the 1 Act Par. 18 Ja. 6. In which it is said, Whom the hail Estates of their bounden duty, with mayst hearty and faithful affection, humbly and truly acknowledges to be Sovereign Monarch, absolute Prince, Judge and Governor over all Persons, Estates and Causes, both Spiritual and Temporal within His said Realm: By neither of which Acts, I conceive our Kings are so absolute, as that they have a Tyrrannick, or Despotic power, but that they are so absolute, as that they have power to do every thing that is just and reasonable, though they be not thereto empowered by particular Acts of Parliament, and therefore they are ill Subjects, and worse Lawyers, who allow the King to do nothing but that for which he can show an Act of Parliament; since his being an absolute Monarch implies this innate Power; and therefore it follows by a better consequence, when any thing is controverted, that the King may do the thing in controversy being reasonable, if his power be not as to that point restrained by a particular Act of Parliament.  
It is likewise very observable that this power of absolute Monarchy does not flow from the people, but is his own Right, for no Act of Parliament grants the King any Prerogative, but only declares by way of humble acknowledgement what his Prerogatives were, principibus, says Tacitus, summum rerum judicium dii dederunt, subditis obsequii gloria relicta est, lib. 4. Armal. vid. observations on the 15 Act Par. 1 Ch. 2. where our Parliament acknowledges that our Kings hold their Crowns from God immediately, Vid. Act 31. Par. 5 Ja. 3.  
I know some pretend that the King's power is here declared to be absolute only in opposition to the Pope, and implies no more but that he did not depend upon the Pope; but this is very groundless, for he is here declared absolute in relation to his laying on of Customs, in which the Pope is no way concerned; and generally the King's power in relation to Ecclesiastic Rights, is said, to be supreme not absolute; and in Civil Rights, is said to be absolute, and not supreme.  
BY this Act English Cloth, 
ACT 252.  and all other English Commodities made of Wool, are forbidden, for the encouragement of our own Manufactures; but since the Union this prohibition is taken off, and a great Custom is only imposed by the 13 Act Par. 1. Sess. 3 Ch. 2. but are thereafter upon the erecting of our Manufactures, absolutely discharged by the 12 Act Par. 3 Ch. 2.  
THese Acts ordaining all Ships to have special Cocquets, 
ACTS 255, 256, & 257.  containing an Inventar of the Goods which they bear, and the names of the Merchants and Owners, are yet in observance; but the Merchants do not still make Faith upon these points, as is appointed by this 257 Act: and if the Keepers of the Cocquet absent themselves to the prejudice of the Merchant, or take more for the Cocquet than the sum of forty shilling, they are to lose their place, and repair the Merchant's damnage by the 50 Act Par. 1. Ch. 2.  
THis Act and the seven following Acts, 
ACT 253,  till the 61. are very clear and need no Observation; only by lossing of Goods in these Acts is meant breaking of Bulk.  
THis Act is but a Branch of the 245 Act. 
ACT 262.   

ACT 263.  THis Act appointing three Burghs-Royal to be made, one in Kintire, one in Lochaber, and one in the Lews, is not only not in observance, but the Erection of a Burgh-Royal in the Lews was unjustly opposed by the Burrows in anno 1636. upon pretext that it would communicate their privileges to Foreigners and Strangers, viz. Hollanders who offered to come and settle there; whereas it would only have dilated and improved our Trade, and these Foreigners had presently become Scottishmen.  

ACT 264.  BY the 119 Act Par. 7 Ja. 6. Inhibitions and Interdictions are to be Registrated in the Sheriff-Clerks Registers: but by this Act all Letters of Horning, Inhibitions, Interdictions, and their Executions are to be Registrated in the Registers of the respective Bailliaries, Stewartries, or Regalities, within which the persons dwell, against whom these Executions are; but if these persons be out of the Country, they must be Denunc'd at the Mercat Cross of Edinburgh, and Peer and Shore of Lieth, and not at the Head Burgh of the Stewartry, Bailliary, or Regality, July 4. 1666. Cunninghame contra Cunninghame; and that because this Act of Parliament speaks only of persons dwelland within the Kingdom: but it may be yet doubted, whether the single Escheats of persons out of the Country may fall upon Denunciations at the Mercat Cros● of Edinburgh, and Peer and Shore of Lieth? or whether Liferent-Escheats will fall, except the Rebel be Denunced at the Head Burgh of the Shire, Regality, or Stewartry wherein his Lands lies? since if he had been within the Country, he ought to have been Denunced in the Respective Jurisdictions within which the Lands lie.  
Albeit this Act appoints all Letters to be executed within Regalities and Stewartries; yet if these Jurisdictions have no known Head Burgh, the Escheat will be sustained upon a Denunciation at the Head Burgh of the Shire, January 7. 1677. Scot contra Dalmahoy.  

ACT 265.  BY this Act all Hornings, Relaxations, Inhibitions, and Interdictions that were to be Registrated in inferior Registers, are ordained to be presented Judicially before a Notar and four Witnesses; which formality is thereafter found not to be necessary, and is abrogated by the 13 Act Par. 16 Ja. 6.  

ACT 266.  VId. crim. pract. tit. Theft.  

ACT 267.  BEcause the Money had risen at this time to a great value, so that the same piece of Money which passed formerly for one penny, was worth ten the time of this Act; therefore it is justly appointed by this Act, that all the Unlaws shall be raised, so that the same Delict which was Fined only in twelve pennies before the first of March 1542. (that is to say, before the first Parliament of Queen Mary) should be Fineable in ten shilling of the Money current the time of this Act, Gel. lib 20. c. 1. tells us that the Romans were in this same manner forced to augment the penalties of the twelve Tables, because Lucius Veracius, took pleasure to beat all that past him, because he was only to pay twenty five Asses for every blow, according to that Law.  
THis Act is Explained crim pract. tit. Beggars. 
ACT 268.   
FRom this Act it is observable that he that is charged with Lawborrows, shall be as liable in the Contravention, 
ACT 269.  as if he had found Caution, though he has not found Caution; it being unjust that by his contempt he should put himself in a better condition; and it is by the same reason that an appearand Heirs Liferent escheat falls to his Superior in the same way, as if he had entered; since it is unjust that the Superior should be prejudged by th● appearand Heirs lying out.  
Observ. 2. That by this Act when any man finds Caution, being charged with Lawborrows, he who raises Lawborrows' has action against either principal or Cautioner at his option, as in other pecunial Obligations; which words, viz. as in all other pecunial Obligations, are added, because by our Law, he who is a Cautione● ad factum praestandum (such as they are who become Cautioners, for Executors, Messengers, or Tutors, etc.) is only liable after the Principal is discussed, because they being only Cautioners for the Principals performance: It must be first known, whether the Principal has performed, and thus the beneficium discussionis; that was of old competent by the Civil Law to all Cautioners, is only competent by our Law to such Cautioners only as become Cautioner● ad factum praestandum.  
THis Act appointing that the pains of the general Bond, 
ACT 270.  shall be divided betwixt the King and the party, is to be understood of the general Bond of Lawborrows, which is appointed by the 3 Act Par. 2. and 12 Act Par. 6 Ja. 2. even as the pain of special Lawborrows, is to be divided betwixt the King and the party, by the 77 Act Par. 6. Ja. 6. for that Act 77 related only to private Lawborrows, at the instance of private parties; and therefore this Act was necessary in the case of general Lawborrows, exacted at the King's instance, for the security of all His Subjects, from such as he thinks liable to suspicion.  
It was and is ordinary for the King and Council, to Charge Heretors who are at feid to give Bonds of assurance to one another, and that upon six hours' advertisement, under the pain of Rebellion, vid. the Council Registers, July 26 1582. and which is a great instance of the King's power allowed him by Law, against those whom he has reason to suspect.  

ACT 271.  THe Rubric of this Act is wrong, for Sheriff Clerk bring not their Books to the Exchequer, but to the Lord Register.  

ACT 272.  BY this Act it is appointed that all such as are Commissioners for Parliament shall be authorised by the Subscription of a great number of the Barons then present, and the Subscription of the Clerk of the Convention, else to be null, which Act was found not to be in Desuetude, by a Decision in the Convention, July 1678. where it was found likewise that this Act extended to Commissions for Conventions, as well as to Parliaments; for though this Act speaks only of Parliaments; yet Parliaments and Conventions being called the same way, the Commissions should have the same Solemnities, and the reason why the Sheriff-Clerks Subscription is requisite, is, because he is the public Servant of the Shire, and so it is presumable that he will mark exactly all that was done, and will not suffer counterfited Subscriptions to be put to Commissions, being to be liable himself, whereas otherwise Commissions may be obtruded upon the Convention with false Subscriptions, as was done in that same Meeting; and which dangerous falsehood cannot otherwise be well fastened upon any other, since the Commissioner may justly allege that the Commission was so granted to him, and one may be chosen a Commissioner who is absent, in which case he cannot know who signed.  

ACT 273.  BUrrows having great Freedoms and Privileges from the King, are therefore obliged to have sufficient Prisons, for receiving such as are attached for Crimes and Debts; which Act was found to oblige Bailies of burgh's of Regality, as well as burgh's Royal, July 7. 1668. and Stewarts of Stewartries, June 18. 1670. and these words of this Act, By the Sheriffs to Stewarts and Bailies of Regality, are wrong Printed, for the word to should be or; But this Act was not found to oblige Bailies of a Burgh of Barony, March 13. 1623. Nor Bishops Bailies, March 21. 1627. But the Bailies of the Head burgh's of Stewartries were thought to be obliged by this Act of Parliament to receive Prisoners; albeit the Act of Parliament appoints them to be presented only to Stewarts and Bailies of Regality; but speaks not of Bailies of the Head Burgh of the Stewartry, June 18. 1670. Cheap contra the Bailies of Falkland: Where it was likewise found, that the Bailies keeping a Rebel eight or ten days in a private House, and thereafter Imprisoning him, were not liable super hoc medio, except he escaped by their negligence, or the insufficiency of the Prison; and it seems by the Act of Parliament, that these burgh's are only obliged to have Prisons, which have Provosts and Bailies; for the Act appoints the Prison to be upholden by the Provost, Bailies, etc. though the Rubric says, that Prisons should be Bigged within all burgh's, and it may be doubted from the words of the Act, whether burgh's which have no Common-good should be liable, especially seeing Magistrates are obliged to keep Prisons for the King's use, because they have a Common-good from Him.  
If the Magistrates do not receive Rebels, or have not sufficient Prisons, they are liable for the Debt, and that without calling the principal Debtor, since the Magistrates are liable ex suo delicto, and these Jails are found not to be sufficient which want Cat-bands, and outward Chains, because the Prisoner cannot force those from within, but the Prison being sufficient, and sufficiently Guarded, vis major, is a sufficient Defence: and though this Act says only, That they shall secure persons presented to them; yet they are found to be obliged to search any House where the Rebel is said to be, July 2. 1669. Farquhar contra Magistrates of Elgin; and though this Act bears, That they shall detain all such Prisoners upon their own Expense, yet this is only extended to Prisoners taken ob vindictam publicam, but it is indulged to the Tolbooth of Edinburgh, That they shall not be obliged to receive any who are offered to Prison by private parties, till the presenters find Caution to aliment them.  
This Act appoints those Prisons to be made for sure Imprisoning, Keeping, and detaining of such Prisoners as are presented, and therefore the Magistrates cannot let them out, either to Church, or to go about any of their Affairs, how important soever, though with a Keeper, since squalor carceris is thus eluded; and therefore in such cases the Magistrates must be authorized by a Warrant from the Secret Council, or Lords of the Session, and that by an Act of Sederunt in anno 1671. and if the Rebel be suffered to escape or go abroad, the Magistrates will not only be liable, but they will get no relief from the Cautioner, though they take Assignation to the Debt, since tenentur ex proprio delicto, and the Cautioner is prejudged of his relief by that their Delict, January 24. 1668.  
THis Act is formerly Explained in the 1 Act Par. 9 Ja. 6. 
ACT 274.   
THis Act is formerly Explained in the 153 Act Par. 12 Ja. 6. 
ACT 275.   
SInce by this Act all Burgesses are to be Stented according to their Rents, and holding within Burgh: 
ACT 276.  it may be doubted if a Burges have no actual Trade, but only Money owing him, by persons without the Burgh, if he may be Stented according to that Estate, since it is no Rent, nor holding in Burgh; but the answer is, that mobilia semper sequuntur personam; and therefore he may be Stented according to that Money: it may be doubted if Gentlemen who never had any Trade, but dwell in the Town very long, may be Stented, though they be honorary Burgesses only. Item, If they can Stint for Ministers Stipends, Strangers within Burgh, who are not at all Burgesses; and this Act seems to imply, that Inhabitants as well as Burgesses, may be Stented according to their Estates within Burgh, and that all who have advantage by the Ministry should pay Ministers.  

ACT 277.  THere are two ways of Levying Subsidies in Scotland; the one is by Taxation, which was the old way, and which Taxation was uplifted according to the Retour: The other is by way of Cess, in which the Subsidy is uplifted according to the late Valuations, wherein every man's Land Rent was given up, as presently possessed.  
The Subsidy granted by this Act, is by way of Taxation, and the old way of uplifting Subsidies by Taxations, may be fully herein seen, and which is very fit to be Read upon that account; and in which it is evident that the Clergy paid the one half, including the Erections; but in anno 1666. a proposal being made that the Subsidy then offered, should be uplifted by way of Cess, and not by way of Taxation.  
These ensuing Reasons were represented against that proposal, and which I have here insert, because they tend very much to the clearing many of our old Laws and Customs.  
The Reasons were, 1. That the Rule and Way for uplifting Taxations has in all ages been according to Retours, and the Taxed Rolls until these late unhappy and irregular times; from which it is humbly conceived a Rule and President ought not to be taken. It is beyond all question, this being the good old way, though it were upon no other account, ought not to be changed, the danger and inconveniency of the alteration of ancient Laws and Customs, being so great and obvious from the late experience of these Kingdoms, that this age needeth not to be put in mind of the same, but may be a sad remembrance to posterity.  
2. The foresaid way is only now the legal way wherein Taxations can be uplifted at this time, seeing the same is determined and authorised by ancient and uncontroverted Customs in all ages, and beyond memory, and by the Law of Nations, and the fundamental Law of this Kingdom; ancient National Custom is Law, and of as great force as Statute, and is the great Basis and foundation of the Power, and Rights, and Property of the Prince and People, which for the most part are warranted and secured by the Common Law and Custom, and not by express Act of Parliament and Statute.  
3. This way of uplifting Taxations and the proportions of the same, payable by the respective Estates, is designed and established by express Laws and Acts of Parliament, so that the same cannot be altered but by a Parliament, which only has power to repeal as appears by the 56 Act Ja. 3 Par. 7. entitled, These Retours should contain the Old and New Extent; and the Act 229. Ja. 6 Par. 14. Ordaining all Feu-lands annexed, and other Feu-lands whatsomever to be retoured, and when any Taxation or Impost is to be raised, that the Fevers shall be charged according to the Retour; and by the 229 Act Ja. 6 Par. 14. Ordaining His Majesty's Property to be Retoured, and such Lands as are dissolved and dismembered from Baronies to be Retoured, and charged according to the Retours, in order to the payment of Taxation, and divers others, and in special all the Acts of Parliament concerning the granting and uplifting Taxations.  
4. Whereas it is pretended by the Heritors of the Western Shires, that their Retoures are higher than in other Shires, and that it should be a more equal way that the Taxation should be uplifted as C●sses, according to the Valuation, without respect to Retours; these Gentlemen have no reason to complain, being their own Deeds, procured by them, upon the verdict of their own Friends and Neighbours per fideles homines patriae, and according to which they have paid not only Taxations, according to the old extent; but His Majesty's Casualties of None-entry, Relief, and siklike, according to the New Extent contained in the said Retours, and has been also in use to uplift the like Casualties from their own Vassals, according to the said Retoure; That the Retours should be altogether taken away, both as to Old and New Extent, it is conceived that they will not desire, seeing if their Retour should be lessened, as to the New Extent, it would be an irreparable prejudice to His Majesty, as to his ordinary Benefit and Casualties of None-entry, Relief; and siklike a prejudice to themselves, as to the same Casualties due, and payable to themselves by their Vassals, and what incongruity should it be, that the same Retour should be altered as to the Old Extent, and should be stated as to the New, and that it should be still a Rule, as to their own interest and benefit, and not as to the payment of the Taxation to his Majesty, as it has been in all ages, it being also considered, that they cannot say that the Lands are valued unjustly by their Retours, and extend to more than the true value, the time of the Retouring of the same, and since that time they cannot deny that they are improven for the most part above any proportion.  
5. The interest, and consequently the way of proceeding of Lawful Princes; and Usurpers being so different and opposite, that as Princes are patres patriae, and do cherish and intend the flourishing of their Subjects; so by the contrary, it is the interest and practice of Usurpers deglubere, to squize and oppress the people, that they should not be in a capacity to shake off the Yoke: it is neither the honour nor interest of the Country to take a pattern and rise from the Usurpers to overturn the ancient Law of the Kingdom, especially in the matter of Taxations, seeing the necessity and fatal course of these times, in order to maintaining of War against his gracious Majesty, and his blessed Father did not only require a Taxation, which was an easy burden to the people, and were cheerfully granted, and oftimes offered to his Majesty's Royal Predecessors as an aid and subsidy, when their occasions did call for the same, but the Usurpers were driven to exact a considerable part of every persons Estate, as a constant Tribute, under the notion of Taxed and Loan Maintenance, Cess and such like burdens, which cannot be remembered without horror; and in order to the same, to introduce a new way by Valuation, whereas his Majesty is to have an ordinary Taxation; and therefore there is no reason but that the same should be raised in that good old and ordinary way, that has ever been used in the time of his Majesty's Father, and his Royal Predecessor.  
6. The way of Cess, both as to the manner and thing is so hateful to the Body of the people of this Kingdom, that though exhausted in a low condition, they did offer, and cheerfully grant to His Majesty a constant yearly Taxation and Annuity, during His Majesty's Life, of 40000 pound Sterling, upon consideration expressly mentioned in the said Act, that His Majesty had signified His Royal Resolution, not to raise any more Cess, it cannot be expressed how great dissatisfaction and apprehension it would beget in the hearts of the people, if that unhappy way of Cess should be revived, under what name or notion soever, now after His Majesty's Restitution, and that the people had just reason to think themselves secured by the ancient Laws and Custom of the Kingdom, and His Majesty's gracious Resolution so recently and solemnly expressed by His Majesty's late Commissioner in Parliament, and recorded in a Printed Act, being the 14 of His Majesty's late Parliament, and first Session thereof.  
7. The Western Shires, being only five, and the remnant Shires who plead for the good old Way, according to the ancient Laws of the Kingdom, being five times more, it is humbly represented, that the interest and number of so many other Shires should weigh down the pretences and desires of so few Shires, for a Novation contrary to the Law and Liberty of the Kingdom; it being also considered, that though the Loyalty of some Noblemen and Gentlemen within the said Western Shires, be above all exception, and be more eminent, that there are so few of sound Principles there, yet to speak modestly, the generality of the Inhabitants of these Shires has not been so forward to desire or promote His Majesty's Restitution and Interest, that now after His Majesty's happy Re-establishment, they should obtain what they could never effectuate in any time, and should be gratified to the prejudice of other Shires of undoubted and constant Loyalty, and the overturning the ancient Law, and Way of the Kingdom.  
8. As to the pretence of inequality in the old Way, it is to be considered, that though an Arithmetical proportion and exactness is not to be expected in any Way; Yet there is more reason to presume for the justice and equity of a legal way, venerable for antiquity, warranted by express Laws and immemorial Custom, which for any thing known, had its beginning in the time of Freedom, and has been continued in the best, most peaceable and pureest times, notwithstanding any endeavours to the contrary, than for a way contrived and hatched in the Heart and fury of Trouble and Distempers, and brought forth and obtruded upon the Country with so much partiality and factiousness, that it is well known that the Shires, and persons who were in opposition to His Majesty, had so great and prevalent interest for the time, that the valuations, both as to the Quota of Shires, and proportions and Rents of private persons were carried on by the instruments and Commissioners, most inequally to the advantage of their party, and the evident prejudice and pressure of whole Shires, and all persons who were sincere, or had the least Affection for the Royal Interest.  
9 By the Common and Feudal Law and Law of the Kingdom, where the Heir of the Vassal Dieth, not Entered, the Superior during the None-entry, has right to the Duties of the Land holden of him, and when the Heir of Ward-lands doth Enter, the Superior hath Right to the Duties for a year, under the notion of Relief, which in both these Cases of Relief and Nonentry, are payable according to Retoures and the New Extent; if the old way of Retoures should be altered in relation to the payment of Taxations, why not in order to None-entries and Relief, so that they should be paid, not according to Retour but Valuations, there being no reason that the said's Casualties are not exacted in rigour: but the ancient Law and Custom for Retoures. How dangerous the preparative may be, if the way of Retoures should be altered, even to those who are for Novations, and what Combustion and Disorder it may occasion in the contrary, it is so apparent, that it needs not to be represented.  
10. Whereas it is pretended that the Lords and others of the Clergy, will have prejudice by the Old Way, both as to their own proportion, and the proportion of the Vassals, and that they are in another condition than formerly, by reason that their Rents are impaired by Valuations and Ministers Stipends, it is humbly conceived with all tenderness and respect to the reverend Clergy, that whatever others for their own interest, do suggest under pretence of theirs. The Lords of the Clergy and others, will not decline to contribute, and be Taxed for His Majesty's Service, as the other Estates, and as to the pretended way of paying Taxation according to the Valuations in these late times, they cannot be Taxed in that way, because the Rents of the Bishops being for the most part in these times of Usurpation, mortified to Universities and other pious uses, they were not valued, nor liable to Cess and such like burdens; it must then follow, that either they must be Taxed in the old Way, or else not at all as to the proportion of the Clergy, it is designed by all the Laws concerning Taxations, and it is not higher than it was at any time, since Taxations were granted to His Majesty's Predecessors; and it is to be observed in all Acts of Parliament concerning Taxations. The Lords of the Clergy do in the first place, before the rest of the Estates, make a cheerful offer of the same proportion without any grudging, and though there needs no reason to be given for clear Law and Practice; yet that the said proportion is Defined, and settled upon good Reason, it is obvious, seeing the same is imposed in order, both to their Spirituality, consisting in Tithes, and their Temporality consisting in Lands and others; and it is known that the Tithes are more than the fourth part of the Rent of Scotland: and Temporalities and Church-lands will extend to a considerable part of Scotland, at least to a fourth part.  
The Clergy having their Benefices and Living, not in Property, as the other Estates, but of His Majesty's immediate favour and grant, and for their life-time; so that it is not strange, that upon the considerations foresaid they paid such a proportion of the Taxation; the case is not altered upon the account of Valuations and Ministers Stipends, that course for Valuation of Tiends, and augmentation of Stipends being procured, and taken at the earnest desire of the Reverend Bishops and Clergy; so that it ought not to be represented, as being to their prejudice; and de facto, the Reverend Bishops and Minister's, have no prejudice by that course, by reason the Bishops and Ministers, and Beneficed persons (who ought only to be looked upon as Clergy) are secured by divers provisions contained in the Acts of Parliament anent the Valuation of Tithes, and in special, that what they were in possession of actually and really the time of the Submission, made by them, should remain with them in quantitate & qualitate, unprejudged by any Valuation, so that the Valuation and augmentation of Stipends being only in Relation to, and affecting the Spirituality and Tiends; the case neither is, nor can be altered as to the Clergy, they being secured by the saids Provisions, and the burden of augmentation of Stipends, and prejudice by Valuations, doth only lie upon the Lords; and Titulars of Erection, and Tacks-men of Tithes, as the case is not altered in relation to Beneficed persons; so Stipendiary Ministers cannot be prejudged by the good old Way, seeing by an Act of Parliament 162 Ja. 6 Par. 13. They are freed and exempted of all Taxations and Impositions, the burden of the proportion of the Clergy doth not lie upon them, but for the most part upon the Vassals, and Tacks-men against which they have by the Law a present and summar way of Relief, as to the Lands and Temporality of the Clergy, they are the same, and in the same case as in time of former Taxations; and that the Vassals of Erection, or of Churchmen, should be in better case than formerly, as to the payment of Taxation, It is contrary to Law and Reason, seeing res transit cum onere & causa; and that Laymen acquiring Lands from Churchmen, should have more case of Taxation, as to such Lands, than other Churchmen had, when they possessed the same, is inconsistent with Law, and with the Respect and Privileges belonging to that Sacred Order.  
11. Whereas it is pretended, that since His Majesty's Restitution, and the said Act of Parliament containing His Promise and Resolution, not to raise any more Cess: A Taxation hath been paid to the Lords of Session in the way of Cess, that pretence is of no weight, it being considered that the said Taxation is granted, not to His Majesty, but for an honorary allowance to the Lords of Session; and by an Act of the same Parliament, wherein His Majesty Declared that no more Cess should be raised; so that the said Act being in the same Parliament, and it being an exception from the said Act, firmat regulam in non exceptis, and shuts the Door as to the future, upon that manner of Raising of Impositions.  
12. Whatever a Parliament may do as to the repelling of former Laws and Customs, a Convention of Estates (though a meetting most eminent) has not that Legislative Power: And albeit the Commissioners from Shires has power by their Commission, to offer and condescend to a Taxation; Yet they have not power to alter and take away the fundamental Laws and Customs of the Kingdom, as to the manner of uplifting of Taxations, being the Birthright of the people, and which cannot be taken away but by a Law made in Parliament.   

King James the sixth, Parliament 16.  
THe Earl of Gowrie having endeavoured Treasonably to Murder King James the sixth, 
ACT 1.  he was Forefaulted in the beginning of this Parliament; and after his Death, his Brother and Posterity were disabled to succeed, and the Name of Ruth●●n abolished; as is to be seen in the first three Un-printed Acts of this Parliament, and a public day of Thanksgiving is appointed by this Act, which is yet constantly Celebrated upon the 5 of August, which was the Day upon which the Murder was to be committed.  
The malice of the fanatics in those times is most remarkable, who pretend that he was unjustly Forefaulted, albeit the Depositions of the Witnesses are yet extant, whereby the Traitorous Design of having contrived, and accordingly attempted to kill that excellent King, is proved by his own relations, and many eminent Witnesses of entire Reputation.  
It is also observable, that Witnesses of old, in Processes before the Parliament, were only led before the Articles, and repeated in Parliament.  
Item, That the Summons was still in Latin, & sub testimonio magni sigilli, they were at the Instance of the Justices, and of the King's Advocate; and the Summons in all such cases were still raised before the Parliament did sit, for our Parliaments sat very short time, and so they err who think that such Processes can only be raised by a Warrant from the Articles, though that be ordinary now. And now likewise the Summons is in Scots, and under the Signet only.  
THe Earl of Gowrie being Forefaulted, 
ACT 2.  his Lands are by this Act annexed to the Crown; and though by the former Acts of Annexation, Lordships and Baronies were only in general annexed; yet here all the particular Baronies of the Lordship, and all Tenements of the Lordship are expressed, with all the Pertinents thereto belonging, which are here specially enumerated, and amongst the Pertinents, Patronages are enumerated, which shows that Patronages in our Law, are comprehended under the word Pertinents, which is also clear by the Author of the Book, called The Parson's Law. See more of this in the Notes on Act 29 Par. 11 Ja. 6.  
The Regalities and heritable Offices belonging to Gowrie, are likewise suppressed expressly, and the said's Lands erected in a Stewartry; for a Regality is properly the Erection of Lands holding of Subjects; and a Stewartry is only in Lands, which are the King's Property.  

ACT 3.  THis Act is Explained in the 37 Act Par. 2 Ja. 6. and that is the Act related to in this Statute.  

ACT 4.  BY this Act, Invading or pursuing any of His Highness' Session, Secret Council, or Officers, it being verified that they were pursued, or Invaded for doing His Highness' Service, is Declared punishable by Death, and upon this Act Mr. James Mitchel was Hanged for Invading the Bishop of Saint Andrews; in which Process it was upon debate found, that the Pursuing and Invading for doing His Highness' Service, was sufficiently proven by presumptions, except the Panel could have condescended upon another reason which provockt him to the attempt, arising from private quarrel or grudge, and that because it is impossible to imagine that the Design of the Invader can be otherwise prov'n, that being an occult and latent Act of the mind.  
By the Civil Law, the Invading a Counsellor was Treason, for says the Emperor, sunt pars corporis nostri, l. 5. C. ad l. Jul. Maj.  
It may be questioned from this Act, 1: Who are to be called the King's officers? 2. If the Invading them when they are out of the Kingdom, or Suspended, or when they are only named, and not yet admitted to their place, will infer the punishment of this Act. 3. If these words in the Narrative of this Statute, that they are oft quarrelled without any just cause, will excuse the Invader, if he can show that he was truly wronged by that party, either in Voting, or deciding against him, or otherways, Scipio Gentilis in his Books, de conjurationibus adversus principes explains the l. 5. cod. ad l. jul. Majest. and shows how far the Invading of the King's Counselors is Treason.  
Sir Francis Bacon's observes that an Act of this Tenor was made at the suggestion of the Chancellor, in the Reign of Henry 7. because of the danger the Chancellor was then in from the Courtiers, drowning the envy of it in a general Law; and I am sure that was also our case, for our Chancellor was in ill Terms then with our Nobility, but their Conspiring was made a Crime; whereas with us Invading is necessary.  
THis Act is Explained in the 80 Act Par. 10 Ja. 3. 
ACT 5.   
THis Act is formerly Explained in the 248 Act Par. 15 Ja. 6. 
ACT 6.   
THis Act Discharging Herring to be carried abroad before Michaelmas, under the pain of Confiscation, 
ACT 10.  is now innovated by the Privileges granted to the Fishing Company, and that very justly, for the sooner Herring be carried abroad, they give the better price: And though there were not Herring enough taken to serve the Country the time of this Act, which was the reason of the Prohibition; yet now there are, sufficiently for serving both the Country and Strangers.  
THough the slaying Salmond in forbidden times, be Theft by this Act, 
ACT 11.  yet none has ever been pursued capitally therefore, but the same is only punished as a penal Statute by an arbitrary punishment.  
The reason why the Rivers of Tweed and Annand are excepted from this Act, is, because the kill Fish upon them prejudges only the English Fishing: but after the Union of the two Kingdoms, this exception as to these two Rivers, is also taken away by the 5 Act Par. 18 Ja. 6.  
THis Act declaring the Provocker and provoked in Duels to be punishable by Death, is Explained, 
ACT 12.  Crim. pract. tit. Duels: and since fight Duels is only declared Death by this Act, it appears that naked Provocation is not Capital; but yet even the sending of Cartals may be arbitrarly punished by the Privy Council: but Fight is Capital, though no killing follow: and fight by Rencounter may be punished as a Duel, though there was no formal Cartal; for by this Law all single Combats are declared punishable by Death, vid. crim. pract. tit. Duels: This Act was renewed by a strict Act of Secret Council, in anno 1674.  
THis Act is Explained in the Act 265. Par. 15 Ja. 6. 
ACT 13.   
BY this Act it is Declared that the negligence of the King's Officers, in Pursuing or Defending a Cause, 
ACT 14.  shall not prejudge the King: and therefore competent and omitted, is never received against the King, though it be against private parties; and by this Act it would appear that the King may propone a Nullity of a Decreet obtained against him, even in foro before the Lords of Session, by way of Exception or Suspension, without a formal Reduction; but yet Prescription runs against the King, notwithstanding that it may be alleged, that by this Act he cannot be prejudged by the negligence of His Officers, in not pursuing, since Prescription is a general Remedy introduced for the final quiet, both of King and People; and as to Heretage it is introduced by an Act posteriour to this Act, wherein there is no exception made in favours of the King; but the Act introducing Prescription of Movables is prior to this Act, and so it may be the more doubted, whether Prescription of Movables runs against the King, since by this posteriour Act it is Declared, that the negligence of His Officers in not pursuing, shall not prejudge him, nor is there so great hazard to the Liege's in their Movables, as in their Heritage.  

ACT 15.  THe Transporting or Inbringing of forbidden or Un▪ customed Goods, that is to say, Goods that should pay Custom, without paying Custom is punishable, not only by Forefaulture of the Goods, but by Confiscation of the Inbringers whole Goods movable; albeit by the Civil Law, ea res tantum in commissum cadit quam quis non est professus; by which Law the naked Entry, or sola possessio, was sufficient to Defend against the Forefaulture & imputandum est publicano qui non exegerit, Perez. tit. C. de vect. num. 10. both by that Law and ours, the Customers may recover the Goods un-entered, even from singular Successors who have bought the same, bona fide, for a competent price; and in that Law, Error excused from Confiscation: but in that case it exacted double Custom, Perez, ibid.  
I have not observed any man's Movables Escheated upon this Act.  
THis Act fining such as will not Communicate once a Year, when he is thereto desired by his Pastor, 
ACT 17.  is ill observed, but not in Desuetude, and therefore was renewed by Proclamation in January 1679.  
Observ. That the having Rancour against their Neighbour, is Declared no relevant excuse; and justly, because it is a fault, and so should be no Defence, & argumento hujus legis, a Fanatic having prejudice at his Minister, even though reasonable, is no legal Defence, for he should still hear.  
Observ. 2. Though this Act say, That no other excuse whatsoever shall Defend; yet certainly inability to Travel, madness, etc. will Defend, and general words are still to be understood, in subjecto capaci.  

ACT 18.  THis Act is Explained, crim. pract. tit. Heresy.  

ACT 19  THis Act is Explained, crim. pract. tit. Beggars and Vagabonds.  
THis Act is Explained, crim. pract. tit. Adultery. 
ACT 20.   
THis Act is but a Temporary Commission. 
ACT 22.   
THis Act against slaughter of Wildfowl, 
ACT 23.  is renewed by an Act of Privy Council, June 9 1682. years, whereby Masters of the Game are appointed for putting these Acts in Execution; though by this Act the Sheriffs, Stewarts, and the King's ordinary Magistrates, have a particular Commission of Justiciary for this effect; and it was questioned in the time, how the Council could take away a Right established in them by the Parliament?  
By this Act, the kill of Mure Pouts is Discharged before the third of July, and Partridge Pouts before the eight of September; and by that Proclamation, Mure Pouts are allowed to be killed after the first of July, and Heath Pouts after the first of August, and Partridge and Quail after the first of September; and whereas by the 109 Act Par. 7 Ja. 1. No Partridges, Plovers, Black-cocks, etc. are to be killed till August; this Proclamation allows them to be killed from the first of July.  
THis Act ordaining all English Cloth to be Sealed by a Seal, 
ACT 24.  the Form whereof is here condescended on, was thought to have been in Desuetude: but now found not to be so in anno 1666. at which time it was found, that the Customers might enter the Shops, and Seal or Confiscate what was not so Sealed. This Sealing was formerly appointed by the 129 Act Par. 12 Ja. 6.  
THis Act appoints, 
ACT 25.  that no Letters of Horning shall be Direct against persons Dwelling on the other side of Dee, upon shorter space than fifteen Days; which Act was found only to be extended to Actions before the Privy Council, but not to Charges before any other Court; because the Narrative of this Act says, That severals of the Liege's were drawn in inconveniencies by Charges before His Majesty and His Council; though the Rubric and Statutory part be General; and though the reason, whereupon this is inferred, extends to all Charges, as well as Charges before the Council.  
SUch as Invade any of His Majesty's Subjects within a Mile to the place of His Highness' Residence, 
ACT 26.  or whoever resort thereto, Armed with Jacks, or Corslets under their Coats, are to be Imprisoned for a Year, and punishable by an arbitrary fine.  
Observ. That the attrocity of the Crime is much heightened from the circumstance of place, as well as time; as is likewise clear by the 173 Act Par. 13 Ja. 6.  
It may be doubted, whether this Act can be extended against such as Invade Strangers? since the Act says only, such as invade Subjects; since the Invading of Strangers is more attrocious in itself, than the Invading of Subjects, the Crime being there aggredged by the breach of Hospitality.  
It may be likewise doubted, how long a time of Residence by the King makes the Invaders punishable? and it would appear that if the Invasion be not within a mile of that which is known to be the place of the King's ordinary Residence, that then it must be proven, that the Invader did reside there for the time.  

ACT 27.  BY this Act Sheriff-Courts should be kept in the middle of the Shire, for the ease of the people; but this is not observed.  

ACT 28.  OF old Pledges were taken in the Borders, that is to say, one man entered himself Prisoner for another, and bound himself for his appearance, person for person; but now the Peace is secured by Sureties or Cautioners, who, if they present not the person for whom they are bound, that very hour they Forefault their Bonds, nor is the presenting the Prisoner afterwards sufficient; which speciality has been found necessary in Border Sureties.  
These Pledges were Distributed of old amongst the Nobility and Gentry, who were to be answerable for them, because we wanted then many and sure Prisons; and because they were unwilling to receive these Pledges; therefore this Act obliges them to receive, and keep such Pledges, under the pain of two thousand marks.  
It may be doubted; if Pledges may not be taken in other Crimes as well, as these relating to the Borders and Highlands, argumento hujus legis, since this may tend much to the quieting of the Country; and if the Nobility may not be forced to keep these, for Prisons may be often so full, that Prisoners cannot otherways be kept; and by many Acts of Secret Council, the Nobility was before this Statute obliged to keep Pledges.  
By the Common Law, Obsides or Pledges could only be granted, ex causa publica, sed non ex privata, Bald. in l. ob aes, C. de obl. & act, But it seems that Pledges, though for Criminal Causes, could not bind themselves to corporal punishment, quia nemo est dominus suorum membrorum licet aliter obtineat de consuetudine, ob bonum publicum, Bald. in tit. de pace Constant. §. damna in finè.   

King JAMES the sixth, Parliament 17.  
THere have been two Commissions granted for considering of an Union betwixt this Kingdom and England, one in this year 1604. and another in anno 1670. Betwixt which there are only these two differences; that in this Act the Names of the Commissioners are set down, and they had no other Commission but the Act of Parliament; but in the other Commission 1670. the persons were nominated by his Majesty, under His Great Seal; the nomination being referred to the King by that Act of Parliament.  
The second difference is, that in this Commission 1604. their power is limited with this provision, viz. not derogating any ways from any Fundamental Laws, ancient Privileges, Offices, Rights, Dignities, and Liberties of this Kingdom: but the other has no such exception; and yet it may be doubted, whether by virtue of the last Commission, those who were Commissionated, could have derogated by their Treaty, from any of our Fundamental Laws, ancient Privileges, Offices and Dignities?  
That the Parliament of Scotland could not consent to an Union of Parliaments, though all its Members were admitted, without at least Consulting the Shires and burgh's, which the respective Members of Parliament represent, may be thus urged; all Nations considering the frailty of their Representatives, and that some ages and generations do too easily quite, what is fit and necessary for securing their Liberty; have therefore thought fit to declare some Fundamentals to be above the reach of their power; and that Parliaments cannot overturn Fundamentals, seems clear, not only, because these were not Fundamentals, if they could be overturned, that being the true difference betwixt Fundamental and other Laws; But if a Parliament should enslave their Kingdom to a Foreigner, the people might by a subsequent Election disown the Perfidy; or if two of three Estates should by plurality exclude the third, surely their Exclusion would be null; and that the Constitution of a Parliament is a Fundamental, appears not only from the Nature and Weight of that Privilege; but likewise from this Commission, anno 1604. wherein it is called Fundamental, and looked upon as unalterable; nor is it imaginable, how the Parliament cannot invert the Constitution of one Estate, and yet can invert and alter the Constitution of the whole: and by our Statutes it is Declared Treason, to endeavour to lessen the power of the three Estates of Parliament; and it cannot be said, that their power is not lessened, when they cannot make one Act or Statute by their own authority, or when others have more interest in, and influence upon their Determinations, than they themselves have; and when, from being absolute, they become subject to another; and a Parliament has but some such power over the people, as the Magistrates and Council have over a Burgh; for the Parliament is but the great Council of the people and Kingdom; and it is most certain, that the Magistrates and Council of a City or Town, could not consent to incorporate with another Town, and consent to the eversion of their own, without the full consent of their people whom they Govern.  
Commissioners for Shires and burgh's, are the same with us that procuratores universitatis are in the Civil Law; and Procurators etiam cum libera, could not alienat the Rights of their Constituents, without a special Mandate for that effect, l. procuratori ff. de procurat. nor can they exchange nor transact upon what belongs to their Constituents (which is our case exactly) l. mandato generali ff. de procurat. and if we consider the Commission whereby they sit in Parliament, we will find it does only empower them to Represent in Parliament their Constituents in every thing, which shall be advantageous for them: From which Commissions I argue, first, That this is but mandatum generale; for it empowers them only in general Terms and bears no Warrant to Treat with England, of an Union of M●onarchies or Parliaments, & generali mandato etiam cum libera ea veniunt quae sunt de consuetudine, l. quod s●no l. §. qui assidua ff. de aedidit. edict. & non comprehendit ea quae sunt usui regionis repugnantia; it empowers not such as have it to do things extraordinary, and which, it is probable, the Constituents would not allow, l. ut si filius ff. de donationibus, l. indebitum ff. decondict indebit & cap. generali de reg. jur. in sexto; but in such cases, as Lawyers observe, and Reason Teaches, the Constituent is to be Consulted, and a special Mandate is required; as is clear by the Laws abovecited. Our Commissioners for Shires and burgh's, sit by virtue of Commissions, and as they need a Warrant to sit, so cannot they exceed it when they sit, and are not arbitrary; Nor could the Parliament of Scotland, as now Constituted, resign their Parliamentary power over to the Council; Nor does their Commission empower them to ordain, that there shall be no future Parliaments; and when they exceed their Commissions, they are no more Members of Parliament, and therefore what they do, is null.  
3. By these Commissions, the Commissioners for Shires and burgh's, are only empowered to Represent them in the Parliament of Scotland; which presupposeth that there must be a Parliament, and consequently that they cannot extinguish, or innovat the Constitution of the Parliament of Scotland; for how can they Represent the Shires and burgh's in a Parliament, which is not; and certainly the Parliament of Scotland can be said to be no more, when they make but a part of the Parliament of Great-Britain; for Scotland cannot be called Britain, nor a part of a Parliament cannot be called a Parliament, no more than the Commissioners for the North of Scotland, can be called the Parliament of Scotland; but how our Commissioners could sit in the Parliament of Great-Britain, by virtue of their former Commissions, I see not? and therefore it seems to be both fit and just, that the Commissioners of Shires and Burrows should be sent home to their respective Constituents, to crave their advice and consent, in so weighty and comprehensive an Affair, nam quod omnes tangit ab omnibus debet approbari.  
It may be likewise contended that this Great Determination of Uniting both Parliaments, requires at least the full assent of the Members of both Parliaments; and that though the Parliament had power to alter its own Fundamentals; yet if any one dissent, the Union of both Parliaments must stop; for both in Law and Reason, the power of making Laws, and the Right to retain or resign Privileges, are two different things; the one is a Legislative Power, which is regulated by plurality of Voices; the other is founded upon Dominion or Property, and is not subject to Suffrage, no more than other Properties are; for as every Member has Right, so his Right cannot be taken away from him without his own consent; though all these who are in the Society with him should renounce what is theirs, in re pari melior est conditio prohibentis, & in re communi nemo dominorum jure quicquam sacere potest invito altero L. Sabinus, ait 28. ff. come. divid. thus if the Members of a Society were by Law free from Impositions, though all the Society, save one, should submit to pay, yet plurality would not in that case oblige the Refuser, and if all who had interest in a Commonty, should condescend to Resign their Right therein in favours of another, yet if one were refractory, that one would not be prejudged by the consent of all the remanent partners; whence it seems consequential, that as the Parliament cannot Debar any Member from sitting in Parliament, so that if one Member by advice from his Constituents, oppose the Union of Parliaments, it could not be carried by plurality; for what ever Reason militats why plurality should not oversway in the one, does likewise militat in the other; and if the right of every Member is given as the cause why, he cannot be debarred from sitting; Why should not the same Right empower him much more to stop the total alteration of the Parliament? even as a man cannot be Debarred from using a Commonty. It will likewise operat, that the Commonty cannot be altered in its Nature, without his consent; and the Right of these who sit in Parliament, is as much prejudged, by extinguishing the being of a Parliament, as by debarring them from sitting, or Voicing in it. Our Shires and burgh's have Right to be Represented in no Parliament, save that of Scotland; and therefore if the Commissioners had power to overturn the being of the Parliament of Scotland, they could have debarred our Shires and burgh's from being Re-presented in the Parliament of Great-Britain, seeing they could pretend no Right to sit there; so that it seems, either plurality of Voices may exclude any particular Member, and may retrinch that Member: Or else by the same Reason, no plurality can establish an Union of both Parliaments; and if our Parliament could by plurality of Voices, overturn the Fundamentals, and destroy the very being of our Parliament; How shall it be possible to secure our Parliament, when it is joined in with the Parliament of England, into one Parliament of Great-Britain, so as that the Parliament of Great-Britain, may not by the plurality of Voices, likewise overturn any Fundamentals that shall be condescended on; but that the Fundamental Constitution, and privileges of Parliament, are not subject to Suffrage, and cannot be abrogated, nor innovated, without the universal consent of all its Members and Commissioners, may be clear likewise from many Instances, for it is most certain that the Parliament, as now Constitute, could not by any Statute Ordain, that there should be no more Parliaments, or resign over their Parliamentary power in the hands of the Council; nor could they Transmit the Power they possess, in favours of their own Heirs, or exclude any of the Three Estates; and sure if Fundamentals be not subject to plurality of Voices; the power of Uniting of Parliaments, and suppressing of Monarchies is not, for these comprehend all other Privileges and Fundamentals; and if the privileges of one of the Three Estates cannot be altered by plurality; I see not how the privileges of all the Three can be; and we have seen Parliaments in the last age do such irregular things, that the succeeding Parliaments have been forced, not only to abrogat their Laws, but even to find that they had exceeded their power, which implies that it was not arbitrary.   

King JAMES the sixth, Parl. 18.  

ACT 1.  THis Act Declares His Majesty's Royal Prerogative by way of acknowledgement, without any new Concession in these words, They all in a voluntar, humble, faithful, and united heart, acknowledge His Majesty's Sovereign Authority, Princely Power, Royal Prerogative, and privilege of His Crown, over all Estates, Persons and Causes; and Confirms to His Majesty His Imperial Power, and whatever Sovereign Authority any of His Predecessors had, and Casses annuls and abrogates all, any way done to the prejudice of His Authority any manner o● way; so that it seems that all former Acts of Parliament, lessening any way the Royal Power, are hereby abrogated.  
By this Act likewise, the Estates of Parliament promise to maintain, defend, and advance the Life, Honour, Sovereign Authority, Prerogative Royal, and privilege of His Crown, with their Lives, Lands and Goods, to the outmost of their power: But because this Act was too general; therefore by the 2, 3, 4, and 5. Acts of the first Parliament, Charles the Second, His Majesty's Royal Prerogatives in the choice of the Officers of State, Counselors and Judges, in Calling and Dissolving of Parliaments, and making of Laws, in making of Peace and War, and ordering the Militia, etc. are expressly acknowledged and Ratified: and by the second Act of the second Session, of the first Parliament, All endeavours to restrain His Royal Person, to Depose or Suspend Him, and all endeavours tending thereto, are Declared Treasonable; and all stirring up of the People, to the hatred or dislike of His Royal Prerogative, are punishable in manner therein mentioned: and by the 27 Act of the 3 Sess. of the 1 Par. Ch. 2. His Majesty is Declared by His Prerogative Royal, To have the only Power of Ordering all Trade with Foreigners.  
Nota, This is the first Act that mentions the word Prerogative, which was formerly called the Privilege of the Crown; and therefore this Act mentions both the Old and the New Words, by asserting His Majesty's Prerogative, and Privilege of the Crown.  
BY this Act Bishops are not so much restored to their Offices, 
ACT 2.  as it is Declared that it was never meant by His Majesty, that the Estate of Bishops was to be suppressed: Their sitting in Parliament, being by this Act Declared, to be one of the Fundamentals of the Nation: But by this Act, their Benefices are only Restored to them, which were much impaired: And though by the 114 Act, Par. 12 Ja. 6. General and Synodal Assemblies, and Presbytries, are thereby Ratified; yet Episcopacy is not thereby abrogated expressly.  
By this Act, the King is Declared to be Sovereign Monarch, absolute Prince, Judge, and Governor, over all Persons, Estates, and Causes, both Spiritual and Temporal, within this Realm: And by the 1 Act, Par. 2 Ch. 2. It is asserted and Declared, That His Majesty hath the Supreme Authority, and Supremacy over all Persons and in all Causes Ecclesiastical within this His Kingdom, and that by virtue thereof, the Ordering and Disposal of the External Government and Policy of the Church, doth properly belong to His Majesty, and His Successors, as an inherent Right to the Crown: and that His Majesty and His Successors, may Settle, Enact, and Emit such Constitutions, Acts, and Orders, concerning the Administration of the external Government of the Church, and the persons employed in the same, and concerning all Ecclesiastical Meetings therein, as they in their Royal Wisdom shall think fit.  
There having been great Debates about the wording this part of the Act; some Members of Parliament, pressing to have it without any Restriction, and others, though very Loyal, pressing it might be Restricted to the Calling and Dissolving of Ecclesiastic Meetings, and External Government only: Lightoun Bishop of Dumblane, was at last trusted by the Commissioner, who has drawn it very Cautiously for the Church; though our blinded fanatics think otherwise; For, First, It is Founded upon the former Old Statute; and after repeating that Statute, it is said, It is therefore Enacted, to show that it was not Designed, that this Act should exceed the former and old Supremacy.  
2. The Prerogative is restricted to Government; and not only so, but to the External Government; and even as to this External Government, the King has only the Ordering, and Disposal of it; and the Administration of it by the next Clause; so that the Doctrine of the Church, nor the internal part of the Government falls not at all under the King's power, by virtue of his Supremacy; that is to say, He can neither Admit, nor Depose, nor Administrat Sacraments; though He may Discharge a Bishop or Minister to Preach; and this is that which was allowed by the Primitive Church to their Emperors: Thus Constantine, that Great and first Christian Emperor, is approved by all the Fathers, for settling thus the Marches, betwixt the Ecclesiastic and Civil Jurisdiction, Euseb. lib. 4. de vit. Constant. vos quidem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉; eorum quae intus in ecclesia sunt agenda ego vero 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eorum quae extra sunt episcopus sum a Deo constitutus; and that the Administration of the Sacraments, and these other things quae intus sunt, belong not to the Civil Magistrate, is acknowledged by the 69 Act Par. 6 Ja. 6. Wherein it is acknowledged, that the Jurisdiction of the Kirk consists in the Preaching of the Word, the Correction of Manners, and the Administration of the Sacraments: In which Act, three things are observable; 1. That the Act tells they derive their Jurisdiction from the King, which is as to the external part; for no man can think they Derive their power of Administrating the Sacraments from the King; though from Him they Derive the Faculty of having the External Face of a Church, without which, that could not be enjoyed.  
2. Though the Church has the Correction of Manners, yet the King may regulat these, as we see in the very next Act, for keeping the Sabbath; and which seems to have been made the next Act to this, for to clear the meaning of that part of this Act.  
3. Though the Preaching of the Word is Declared to be a part of the Ecclesiastic Jurisdiction; yet that relates only to the Matters of Faith, to be Preached; as to which, Ministers are to be judged by Church Judicatures; but if they Preach what encroaches on the Secular power, they are to be judged by the King, and those Deriving Power from Him, conform to the 129 Act Par. 8 Ja. 6.  
This Supremacy in cases Ecclesiastic seems to have been ever the proper Right of Secular Princes; and Haedeus the Great Canonist. repet. in cap. novit. de jud. num 145. Though a Roman Catholic does acknowledge, That nemini dubium est quin▪ in primitiva Ecclesia de rebus & personis ecclesiasticis jus dixerint; which will very clearly appear to any who will Read the first thirteen Titles, of the first Book of Justinians Codex; in which he ordains amongst other things, vim legum obtinere Ecclesiasticos canon's a quatuor synodis Nicena Constantinopolitana prima Ephesina prima & Chalcedonensi expositos & confirmatos; and I find that the Supremacy is in England thus Established, under the Reign of Henry the eighth, That the King and His Heirs and Successors, should be taken and accepted as the only Supreme Head on Earth, of the Church of England, and should have and enjoy, annexed to the Imperial Crown of that Realm, as well the Title and Style thereof, as all Honours, Dignities, Preeminencies, Jurisdictions, etc. to the said Dignity of Supreme Head belonging.  
In this Act the Bishops are not restored to Benefices, that are not of Cure, but to these which have a particular Cure; and therefore His Majesty Confirms all Dispositions, or other Rights made of Abbacies, Priories, or other Benefices, not being Bishoprics made or Confirmed at, or before July 1587. they paying the Greslum appointed by that Act, to the Bishop within Year and Day.  
There is likewise reserved by this Act, all Feus' lawfully set and Confirmed before the Act of Annexation, which was in the year foresaid; and all Patronages of Kirks (pertaining formerly to them) Disponed by the lawful Titular; and the King's Majesty, and Ratified in Parliament, which extends, as well to the Patronages of Mensal Kirks, as of Kirks which are of the Bishop's presentation, March 25. 1631. and albeit regulariter confirmatio nihil novi juris tribuit; yet hoc casu supplet omnes alios desectus; for by the former Practic it is found, that alienations of Patronages, even of Mensal Kirks, are valide, if made as said is, by the lawful Titular; though not made by him, with the consent of the most part of the Chapter; for this Act requires that it be made by the lawful Titular, but there is no mention therein of the consent of the Chapter.  
By the Act of Annexation in anno 1587. the whole Superiorities of all Kirk-lands being annexed to the Crown, it was therefore necessary that by this Act, they should have been Restored, but they are not Restored expressly to these; but it is alleged that they have Right to them by the 14 Act Par. 1 Ch. 1. But yet in that Act it is only said, that what is Statute anent the Kings being Superior to Vassals of Erections, shall be but prejudice to Bishops and their Chapters, of their Rights to their Superiorities, which is only a Reservation, but is no express Restitution of them to these Superiorities.  
THis Act anent the Dilapidation of Bishoprics, 
ACT 3.  is formerly Explained in the general nature of Dilapidations, in the Act 101 Par. 7 Ja. 6. and Act 11 Par. 10 Ja. 6. and as to what concerns Chapters, it shall be Explained in the Act 2 Parliament 22 Ja. 6.  

ACT 4.  WHen a person is Forefaulted, he may be in Law Restored two ways, viz. either by way of Justice, when the Sentence of Forefaulture is found to be unjust: or by way of Grace, when the Sentence is just; but the person Forefaulted, or his posterity is restored; which distinction we have from the Civil Law, that allows a distinction, inter restitutionem per modum justitiae & per modum gratiae.  
The difference betwixt these Restitutions by this Act of Parliament, is, that the person that is restored by way of Grace, has not by his Restitution, Right to any part of the Forefaulted Lands, and others Disponed in favours of third parties: but such as are Restored by way of Justice, will thereby have Right to their own Lands, though Disponed to third parties, for onerous Causes, as was found in the Disposition of the Lands of Mugdock, formerly belonging to the Marquis of Montrose, and Disponed by the Parliament for onerous Causes to Argile: as also, these who are restored by way of Justice, will have Right even to repeat the sums of Money, which formerly belonged to them, though assigned to third parties for onerous Causes: and albeit those sums were first ordained to be paid in to the Thesaurie, and precepts only drawn upon the Thesaurie, in favours of these third parties, as was found in the Earl of Branfords' case against the Earl of Callender and others; though this Restitution of Money seems much harder than that of Lands, since Money is res sungibilis: and singular Successors are not obliged to know to whom the same belonged.  
A Process having also been intented against the Earl of Argile in the Parliament 1681. for reducing his heritable Offices, as granted since the 44 Act Par. 11 Ja. 2. It was answered, that these heritable Offices were Disponed to the Family before that Act; and it being Replied, that the first Right was extinguished by the Forefaulture, and the Restitution being only by way of Grace, was to take effect only from the date; nor was it more sufficient against the King, than if the King had granted them originally at that time; in which case they would have been quarrallable on that Act; and yet the praxi, the King restores to Titles of Honour, as of the first date. By the 2 Act Par. 9 Ja. 6. The King succeeding to Lands by Forefaulture, has right to whatever the Forefaulted person was five years in possession of before the Forefaulture, because it is presumed, that the Forefaulted person will abstract the Evidents; and therefore upon the same presumption, it is likewise appointed by this Act, that the production of Extracts out of the Register, shall satisfy the production in Improbations against the King in Forefaulted Lands; Whereas other singular Successors Rights will be improven, if the Originals be not produced, vide notata upon the said Act 2. The excellent Narrative of this Act is Copied out of l. 1. §. 1. ff. de justitia & jure.  
THis Act is Explained in the 11 Act Par. 16 Ja. 6. Which is that Act that is here Rescinded, 
ACT 5.  though it be not here cited.  
BY this Act it is appointed, 
ACT 7.  that where there is no arable Ground in the Paroch, the Minister shall have sixteen Soums Grass in place of the four Aikers, which are allowed to him for his Gleib: and by the 21 Act Par. 1 Sess. 3 Ch. 2. It is ordained, That the Minister shall have Grass for one Horse and two Kine, over and above his Gleib; and therefore it was doubted, if where the former Gleib did extend to more than would be Grass for two Kine and an Horse, above the four Aikers, the Ministers might seek that Grass, and the Lords found they might; albeit it seems that if this were just, the Minister might also seek Grass for a Horse, and two Kine, even where he had sixteen soums Grass, by this Act, February 16. 1675. Parochioners of Banchry contra their Minister.  
THis Act is but Temporary. 
ACT 9   
THis Act appointing Letters of Horning to pass upon Sheriff, 
ACT 10.  Stewart, and Bailies Decreet, without a Decreet conform, before the Lords, is Explained in the 177 Act. Par. 13 Ja. 6. and because these Acts gave only warrant for Raising Letters of Horning upon such Decreets; Therefore warrant is likewise given for raising Letters of poinding upon all such Decreets, by the 29 Act Par. 1 Ch. 2. which shows that express Acts are used even where there is paritas rationis; and they are useful, ob majorem evidentiam.  
BY this Act all persons are Discharged from receiving any Colziars, 
ACT 11.  Salters, or Coal-bearers, without sufficient Testimonials from their Masters; but though this Act appoints the Coalyars, Coal-bearers, and Salters, to be punished as Thiefs; yet none ever Died upon this Act: but the ordinary Action, both against them and their Resetters, is before the Privy Council; and the Act only says, They shall be repute as Thiefs, and punished in their bodies. This Act is extended to Drawers of Water in Coal-heughs: and the Fees of Coalyars are Discharged to exceed twenty Marks by the 56 Act 1 Sess. Par. 1 Ch. 2. though this Act only Discharges all persons within the Kingdom to hire other men's Coalyars, etc. yet it was justly thought, that the prohibition of it extended to all such as had Right to Coal or Salt here by Tack or otherwise, though themselves dwell not within the Kingdom, and it seems that the Council might hinder Foreigners to carry away our Coalyars, and Salters, though they cannot punish them for so doing.  
By this Act likewise, a Power and Commission is given to all Masters and Owners of Coal-heughs and Panns, to apprehend all Vagabonds and sturdy Beggars, and put them to Labour; and it has been resolved, that Tacks-men of Coal-heughs and Pans, has the same privilege, though they cannot properly be called Masters and Owners, except the words be allowed to be extended to Temporary Rights: but since this privilege is chiefly real, and not personal, & in rem scriptum; therefore it seem● reasonable, that whoever have the power of the Coal-heughs, should likewise have this privilege, which is granted upon their account.  
The Council thought argumento hujus legis, that Masters of one Manufactory, could not have Action against others of the same Manufactory, for resetting their Servant, who had run away from them, and to whom they had learned their Trade: and yet I have seen action granted in the Council against Heretors, who had entized away other men's Fishers, and the parity of Reason seems to reach to such as work in Lead-mines. This condition of Coalyars and Salters by our Law, makes them to be like to the addicti glebae & adscriptitii, mentioned in the Common Law.  

ACT 12.  THis Act is Explained formerly in the 72 Act Par. 14 Ja. 2.  

ACT 13.  BY this Act men are Discharged to lay Lint in their own Loches, since thereby Fish is destroyed, and the Water becomes Noxious to Neighbours; and thus property is in many things restricted, for the good of the Commonwealth; there being nothing more consequential to property than that, quilibet potest jure suo uti modo principaliter hoc non faciat in aemulationem alterius: But it seems that only the Parliament can restrain this exercise of property, else this Act had been needless: and therefore when the Laird of Haining offered to Drain his own Loch; it was justly Debated, whether the Fishers upon Tweed could hinder him, because the Water that run in from the Loch to Tweed, prejudged their Fishings: But that which made the case there more Debateable, was, that public Rivers and Salmond Fishings, are of their own Nature privileged. It may be likewise Debated, whether paritas rationis should extend this Act, against such as lay stinking Hides, or other such noisome things in their Loches or Burns; and the laying any such things in the Loch of Lochlevin, is specially Declared punishable by the 29 Act Par. 1 Ch. 1. Vide quaestiones medico legales Pauli Zacchej, lib. 3. Tit. 3. where he condemns what is here Discharged as noxious, both to Man and Beast.  

ACT 14.  BY this Act the Vassals who hold Blench of His Majesty, are only liable in their Blench-duties, if they be required allanerly; and these Blench-duties cannot be converted into Money by the Exchequer.  
Observ. 1. It is declared by this Act that Blench-duties are not to be any Burden, or yearly Duty, by their own Nature, but only an acknowledgement, or recognizance, if they be required allanerly: and yet by our Law, in Lands holding blench of a Subject, we thus distinguish, viz. either the Charter bears, si petatur tantum, and then the Blench-duty cannot be required beyond the year, in which it was due: Or else the Blench-Charter bears not this Clause; and then either the Blench duties are such as are of a yearly growth, as Wax, Pepper, etc. and these can only be craved within the year: Or else they are things of some intrinsic value, and not of an annual growth; such as Silver, Spurs, etc. and they may be pursued for at any time within forty years: Nor can any annual Prestations, such as Carriages, be acclaimed, after elapsing of the respective years, wherein they were due by the Tack, or otherways, January penult 1624. But though a Vassals Charter, who holds of the King, bear, si petatur tantum; Yet the Exchequer by an Act, does Tax the price, and pursue for these, and for annual growths, albeit they have not been craved within the year, for which I can give no other reason, but that the negligence of the King's Officers cannot prejudge the King: But how can the Act of Exchequer alter the Nature of the holding, which is an express Contract betwixt the King and His Vassals; and it may be alleged, that by Act of Exchequer, it may be as well Declared that prescription shall not run against the King, for this is a species of prescription; but especially since it is Declared by this Act, that they shall not pay, notwithstanding of any Act of Exchequer past, or to come: nor does the Act anent the negligence of the King's Officers, abrogat this Act, as it ought to have done. The Advocats Protestation in the end of this Act seems to be in-intelligible; for how can Blench-duties be conform to the King's Estate and Dignity: Some Interpret this Act, as if it only prohibited the Conversion of the Blench-duty into Money, in the body of the Charter; but does not hinder the Exchequers valuing of it: Others to reconcile the present practice with this Act, make a distinction betwixt holdings in blanco, and in alba firma; as if the first being an inconsiderable Duty, as a Rose, or a Penny, may not be converted to Money; but the other affording some profit, such as Gilt-spurs, Gloves, a pound of Pepper, etc. may be valued by the Exchequer.  
This Act quadrats with Tit. 2. lib. 11. Cod. Theodos.  
THis Act is formerly Explained in the 77 Act Par. 6. Ja. 5. 
ACT 15.   
BY this Act, all such as Convocat▪ 
ACT 17.  or Assemble themselves within Burgh, without Licence of the Provost and Bailies, are declared to be guilty of Faction and Sedition; and it has been doubted, whether Keepers of Conventicles within Burgh may be punishable by this Act; for though there be a specific punishment appointed for Conventicles; yet since this and o●her Laws, by which Conventicles may be punished, in specific and particular cases, are not abrogated expressly: It is therefore alleged that they are not abrogated, conform to the general Rule set down in the 243 Act Par. 15. Ja. 6.  
Observ. 2. It may be doubted whether, since this Act runs in the general against Convocations within Burgh, if this Act should not as well extend to burgh's of Barony, and burgh's of Regality, as to burgh's Royal, since the word Burgh comprehends all; and the Reason inductive of this Act, viz. the quenching Convocations extends likewise to all; and when the Parliament designed to extend their Acts only to burgh's Royal, they were particularly expressed, as is to be seen in the immediate foregoing Act: and albeit it may be urged, that this Act speaks of Provost and Bailies, yet this must be Interpreted applicando singula singulis; for there are many burgh's Royal, as well as burgh's of Regality and Barony, that want Provosts.  
Observ. 3. That though this Act ordains only such as obey not their Magistrates and Officers, to be fined; yet if the Inhabitants of any Town refuse to obey any Officers in the King's Name, such as Captains, etc. they may be fined.  
Observ. 4. This Act appoints that it shall be proclaimed at all the Mercat Crosses of the said's burgh's; albeit by the 128 Act Par. 7 Ja. 6. all Acts of Parliament are only to be published at the Mercat Cross of Edinburgh; but this Act being posterior, and special, derogats from that general Law; and this was specially appointed, because of the special interest of the Burrows.  
Observ. 5. It is observable that this Act proposes no punishment for Towns, where the Magistrates do not their duty to oppose Tumults against the Government; yet the Town of Lanerk was fined for not pursuing those who burned the Test at their Cross, anno 1681. and private Burgesses pay a proportion of such fines, though they were not required by their Magistrates, because it is their duty to concur when they see such Tumults; and Magistrates are oftimes unable to require concurrence.  

ACT 18.  THe Lands of Huntingtoun and Strabrand are dissolved to be set in Blench Farm, in favours of the Earl of Montrose; and it was necessary that there should be a particular Warrant for setting the Lands in Blench-farms; because by the 234 Act Par. 15. Ja. 6. The annexed property can only be dissolved, for setting Lands in Feu-farm, vid. observe. on that Act.  
It is likewise observable by this Act, that because this Dissolution was to be made in favours of the Earl of Montrose, than Commissioner. It is mentioned that there is a particular Warrant for dissolving the same.   

King James the sixth, Parliament 19  
THis Act against Sayers and wilful Hearers of Mass, is Explained, crim. pract. tit. Heresy. 
ACT 1.   
Nota, By this Act the Resetters of such are fineable, as Non-communicants; and the Act by which these are fined, is not here cited, but it is the 17 Act Par. 16 Ja. 6.  
THis Act against the users of false Weights and Measures, whose whole Goods are to be Confiscated; is Explained, 
ACT 2.  crim. pract. tit. Falshood.  
THis Act is Explained, crim. pract. tit. Theft. 
ACT 3.   
THis Act empowers the Bishop of Saint-andrews to choose seven within his Diocie, to be his constant Chapter; 
ACT 8.  which was formerly resolved upon by the 3 Act Par. 18 Ja. 6. Though the power of choosing them was not given to that Bishop expressly: But thereafter by the 2 Act Par. 22 Ja. 6. The Benefices whose Incumbents are to make up that Chapter, are particularly condescended on in that Act.   

King JAMES sixth, Parliament 20.  
SUch as sent Pedagogues abroad with their Children, without a Testificat from the Bishop of the Diocie, 
ACT 1.  where the Pedagogue lately made his Residence, are fineable by this Act; and though this Act is thought only to strike against Children of Popish Parents; Yet it is general, and strikes against all His Majesty's Subjects, of what Religion or Opinion soever; and though they use to call these Governors, and not Pedagogues: yet that will not defend against this Act, for Pedagogue was the only Term then in use.  
THis Act strikes only against the Children of Popish Parents, 
ACT 2.  who are hereby ordained to find Caution to the Lords of Privy Council, that they shall not entertain their Children abroad, when they know them to be Popishly inclined; and by virtue of this Act, the Lord Semple and others, were obliged in anno 1667. to recall their Children out of Douai; and this Act was renewed by Proclamation of Council, January 1679.  
BY this Act it is Ordained that such as are Excommunicated, for not professing the true Religion, 
ACT 3.  shall neither directly, nor indirectly possess their Estates; and by virtue of this Act, it was found upon the 16 of June 1629. That those Excommunicated persons, are not so much as bona fide possessores; but that by virtue of this Act, they are obliged to refound all their own bygone Rents, possessed by them before Citation or Sentence, they only getting Defalcation of Seed, T●ends, and Servants Fees: Which are ordinarily defalked in the Computation of Multures, and all other intromissions.  

ACT 6.  IN time of Popery, every Bishop had his own Official, or Commissar; but in the year 1563. Queen Marry by a Signature, Superscrived with her own Hand, did institute this Court at Edinburgh, appointing four Commissars to sit there, and to judge in Divorces, and to Reduce the Decreets of Inferior Commissars, which is Ratified in Parliament. 1567. by which also they are appointed to Judge in all Actions concerning Benefices granted by the Queen. They were at first nominated by the Queen, and were called, Judices Reg●i; but after Her Demission, they were nominated by the Lords of Session, as is clear by the Books of Sederunt: and even in this Act, the present Commissars were to continue, they getting Testimonials of their sufficiency from the Lords of the Session, and severals of them were at once Lords of the Session and Commissars, as appears by the Books of Sederunt; upon the Restitution of Bishops, the Commissars who then were, did submit; and this Act seems to have proceeded upon a Submission betwixt the Bishops and Commissars, the 23 of June, the day before the Parliament sat down, whereupon Decreet was pronounced the 29 of June, containing the foresaid Reservation of the Commissars Offices, and in the case of the new Provisions, the Commissars are the only submitters; and yet there are Annuities Discerned to the Clerk, to the former of Testaments, Quot-masters and others; and there is a form prescrived anent the procedure in Divorcements, betwixt the parties in other Commissariots, who are not worth a certain sum, which hath no foundation in the Act, nor seems to be seconded by practice; the Decreet is Registrated, January 19 1610. Relative to the Decreet, wherein the Archbishops and Bishops of Galloway and Orknay are subscrivers for themselves, and taking burden for the remnant Bishops, and their Successors, there is a Contract the 15 of November 1609. and March 5. 1610. entered into amongst the Bishops▪ for the relief of the Archbishops, or either of them, for payment of their respective proportions to the Archbishop, who shall happen to be distressed for the Salary, the Archbishops by the Contract, being bound conjunctly and severally to the Commissars, the whole proportion of Relief due by Glasgow to Saint-andrews, is the double of the Contribution to the Lords, and Salary due to the two youngest Commissars, and the Relief due by Saint-Andrews to Glasgow, is the double of his Contribution, and the Salary due by him to the two eldest Commissars: By which it appears, that before this Decreet, the Commissars had Salaries; the obligement in favours of the Members of Court, of the Commissariot of Edinburgh, whereby the Bishops are obliged to compel the Members of their Court, to pay certain Sums to the Members of the Court of Edinburgh, during their life-time, is not renewed in the Contract: In this Contract the obligements upon the part of the Commissars; are general, relative to their Duty to their Superiors, and fidelity in administration of Justice, according to the Practic and Injunctions, the Observation of the Decreet Arbitral, and Articles, by which it is ruled, subscriv'd by Arbiters and Overs-men, which is not extant; there is no penalty adjected, neither are the Commissars subscriving.  
The Commissars and many of the Bishops being dead, who were alive the time of the Decreet Arbitral, the Bishops especially; the succeeding Bishops refused to pay the Salary to the succeeding Commissars; whereupon they pursued John, than Archbishop of Saint Andrews, who▪ the time of the Decreet and Contract, was Archbishop of Glasgow, and James Archbishop of Glasgow, who then was Bishop of Orknay, as the only two alive, who were burden-takers by the Submission for the rest, and Decreet followed, February 12. 1630. against the Archbishop of Saint-andrews, who, the time of the Contract, was Archbishop of Glasgow, and was bound conjunctly and severally with Saint-Andrews; The Archbishop for his Relief upon the Contract, being Distressed upon the Decreet, pursued Adam Bishop of Dumblain, who was created Bishop since the Contract, and thereupon defended himself, as free of the Obligement of Relief: as likewise, that the Salary was not due to the then Commissars, it being due to their Predecessors, the Submitters allanerly, which was repelled, and the Bishop Discerned, February 18. eodem. In respect the Charge and Pains was perpetual upon the Commissars part, and the benefit perpetual to the Bishops, and they having the Confirmation of the great Testaments; and the word allanerly was found only to exclude the Heirs of the then Commissars, but not their Successors in Office; the point being cleared as said is, the Commissars thought it more just that every Bishop should be liable for his own part; and therefore all the Bishops are pursued, wherein the same Defences are again repelled, and they Discerned, March 27. eodem: and the 24. of July 1634. there is a new Decreet obtained in favours of the Commissars and their Successors against the Bishops and their Successors, containing a Declarator, that it was a constant Fee, payable in all time coming, this was in absence; the Decreet against Saint-Andrews, dated the 12 of February 1630. is not extant, unless in the Register; but it is Narrated, and Founded upon in the Decreet, at the Instance of Saint-Andrews against Dumblain; upon the Decreet in March against the Bishops, there are Letters raised, dated the last of March, Givand warrant to Charge the Bishops, to pay their proportion of the Salary, and to find Burgesses of Edinburgh Cautioners, within fifteen days; That in all time coming, they shall pay their proportions, conform to a Deliverance of the Lords, shown to them, founded upon the damnage that the Commissars would sustain in evacuating their Salaries, by Charging and Denuncing the Bishop's yearly, in the several remotest corners of the Kingdom; the Deliverance is not extant. There are other Letters directed against them the first of April 1630. for payment only; so that both the Remedies are used: There are likewise Letters directed for finding a sufficient Burges Cautioner, Dated the sixteenth of February 1637.  
The ninth of July 1661. There is an Ratification in Parliament, in favours of the Commissars, declaring the Rent, Patrimony, and Estates of the Bishops to be liable to them for their Salaries; and there is a Reservation in favours of the Commissars; in the Restitution of the Bishops, there is a Decreet against the Representatives of Archbishop Fairfowl, wherein the whole Defences against the Commissars Right are repelled: but by the said Decreet, the disparity betwixt the Provision of a Salary, in favours of the Commissars, and in favours of the other Members of Court, by the Decreet Arbitral, is not sufficiently cleared; for the Decreet, as to the Members of Court, was null, it being beyond the Terms of the Submission, which was only in favours of the Commissars: and as to the Members of Court, the Decreet infers no special direct Obligement upon the Bishops; but only that they are obliged to compel their Members of Court to pay these certain sums to the Members of Edinburgh, without any penalty, and which hath never taken effect by the Decreet, or Contract, the Commissars had no action against the whole Bishops, but only against the whole burden takers, and the Archbishop: but by the subsequent Decreets, and Acts of Parliament, the whole Bishops, and the Intrometters with their Rents, are directly liable unto them, and so their Executors intrometting with the Ann, or the subsequent Bishops are liable; and that is but prejudice of the obligement in solidum, against the Archbishop, contained in the Contract; by virtue whereof, Saint-andrews was Discerned, and by virtue of a Submission, betwixt Saint-andrews and Edinburgh; Edinburgh is Discerned to relieve Saint-andrews in the half; and Saint-andrews hath Ratified to him in Parliament, the nomination of the whole Commissars, against which, Edinburgh did protest. It doth not appear how Glasgow loosed his Right to the nomination of two established to him by the Act of Parliament. There was an Act for regulation of the Commissariots, which took no effect; neither is there any thing done by the Lords, by virtue of the Act of Parliament 1661. as to the Regulation of the Commissariot of Edinburgh, or settling a course for the punctual and secure payment of the Commissars Salary; the whole Instructions abovementioned, related to, are to be found with the Commissars of Edinburgh.  
It is observable by this Act, That the Commissars of Edinburgh have a twofold power; an Diocesian, whereby they Confirm the Testaments within the Diocy of Edinburgh, and exerce all power that is competent to other Commissars: and another universal and transcendent, whereby they may Reduce the Decreets of all the other Commissars in Scotland: and this Act found'st them so absolutely in this Jurisdiction▪ that it is exclusive of the Lords of the Session's power so far, that the Lords cannot Reduce in prima instantia, a Decreet past by any inferior Commissar; and the Lords themselves did so dec●de, after full Debate, Dury July 23 1624. Though it was there alleged, that the Parliament could not diminish the power of the Session, without calling them thereto; and yet now the Lords does ordinarily Reduce in prima instantia, the Decreets of the inferior Commissars; which proceeds rather from the inadvertancy of the Advocats, who are careless to Plead it, to withdraw Actions from the Judicature whereof they are Members, than that the Lords do concern themselves to claim it; but both then and now, the Lords may Reduce the Decreets of the Commissars of Edinburgh, if they dec●de not rightly in th●se Reductions.  
In this Act also, Bishops are empowered to Create Clerks, and Procurator-fiscals; and though in the Commission, which the Bishops give to Commissars, they give them power to admit Procurators; yet cannot the Commissars by that power, Create Procurator-fiscals, but only ordinary Procurators; the Fiscal remaining still at the Bishop's nomination, July 12. 1627.  
The Commissars Books bear sedebant, where the Lords Books bear Sederunt.  
KING James finding that the Nobility did ordinarily get their Children, Friends, 
ACT 8.  or Servants to be Elected Magistrates of burgh's, whereby they carried all Nominations in Parliament at their pleasure; Did therefore in this Act, which is entitled, Act for the Apparel of Judges, Magistrates, and Kirk-men, Ordain, That no man should in time coming be capable of Provestrie, or other Magistracy, but Merchants and actual Traffiquers, and Habiters within the said Burgh allanerly, and no others: By virtue of which Act, Chancellor Seaton was obliged to demit his Provestry of Edinburgh: and this Act is renewed by Proclamation in anno 1626. How soon King Charles came to the Crown. Some think, that though Noblemen cannot be Elected since this Act; yet the Privy Council may name them: and some think that this Act is in Desuetude: but I believe neither; for where the Council names jure d●voluto, because Magistrates accept not, they come only in place of the old Magistrates and Council; and therefore they can only do what these could have done, ex regula surrogatorum; and this Act having been made in favours of the King and Monarchy, it cannot run in Desuetude, without their consent; and it is thought▪ that by virtue of it, none who are Lords of the Session can be Provosts, these being incompatible Employments, and inconsistent with the design of this Act, which bears to be made to hinder the dissipation of their Common Good, and perverting of their Privileges, which is much more easy for Lords of the Session, and persons in publck Employment, than for others; beside, that public Traffic and Merchandising, is inconsistent with that exact distribution of Justice, which is necessary in His Majesty's Judges, vide Lampridium in vita Severi, as to the distinction of Habits amongst Magistrates.  

ACT 9  THis Act is Explained, crim. pract. tit. Injuries. To which I shall only now add, that not only what is destructive to the Government, but what may tend to the prejudice of the Government, is here punished: and this I have thought fit to observe; because tending has been oftimes Debated not to be Relevant. It may be also doubted, whether speaking against the House of Commons, or their Resolutions, is punishable by this Act, since it punishes all reproachful Speeches of the People, or Country of England; and they are the Representatives of the People; and since these are punishable who speak against a Counsellor of England, much more ought they to be punished who speak against the House of Commons. But in my opinion, this Act reaches only such as speak reproachfully of their Nation, Country, and Counselors; but the whole Act ought to be abrogated by our Parliament, as being passed by us, in expectation that England would make such an Act in their Parliament, which they never did; and upon which account it was never in observance with us. It is likewise observable, that though in our Law, Concealing and not Revealing, is only punishable in Treason; yet by this Statute, the hearing any thing spoke against the people of England, or any Privy Counsellor in that Nation, and the not Revealing, is declared to be equally punishable, with inventing such Calumnies.  
THis Act is Temporary as to many things; but it is observable from it, 
ACT 10.  that the using false Testimonials, is punishable by death, as Falsehood. And the power given to the Commissioners of the Borders, to apprehend Fugitives, and to send them, or their marks and tokens to the King's Commissioner, is founded on l 4. ff. de Fugitivis; Where Limenarcha, which is our Commissioners of the Borders, debent inquirere in fugitivos; and to send them with their notae (which is our Tokens) to the next Magistrates.  
THe Customs being annexed to the Crown, by the 8 Act Par. 1 Ja. 1. 
ACT 11.  They are by this Act dissolved from the Crown, in so far as concerns 10000 pounds yearly, to be paid to the Lords of Session, in place of Quots of Testaments; and therefore the Lords of the Session do, conform to this Act, Decern summarily the Tacks-men and Collectors, to pay this 10000 pounds, and ordains them to be Charged with Horning.  
BY the 4 Act Par. 18 Ja. 6. It is Declared, 
ACT 12.  That Restitutions by way of Grace shall not prejudge those who acquired the Forefaulted persons Lands, either by a Lucrative, or an onerous Cause; but because, both by an inference from that, and by the Principles of the Common Law, these who are restored by way of Justice, might pretend to quarrel those, who during their Forefaulture were presented to Benefices, to which they were Patrons, upon pretext that they were to be restored entirely. Therefore it seems that this Act has been made; whereby it is declared, that such as are presented to Benefices, which were at the Presentation of Forefaulted persons, shall not be prejudged by their Restitution; and which was very just, since Patrons are not prejudged; because it is presumed, that the Ordinary would not Collate persons that were insufficient; nor were Patrons allowed to make any advantage by the Presentations; and upon the same principle, it seems reasonable to conclude, that a Minor cannot Revock a presentation granted by him, with the consent of his Curators, during his Minority.  
THis Act Ratifies an Act of Privy Council, whereby Egyptians were commanded to depart the Kingdom betwixt and the first of August thereafter, under the pain of Death: 
ACT 13.  but it may be justly doubted, how the Council had power to make Acts inferring the pain of Death? Since it is a received Principle in our Law, as is clear by Craig and others, that the Secret Council can make no Act which may infer forefaulture of Life or Estate: and though by the Acts 124, and 147. Par. 12 Ja. 6. Judges be ordained to punish Egyptians; and that by the 268 Act Par. 15 Ja. 6. Vagabonds and Egyptians are to be employed in Common Works: yet by neither of these Acts, is the pain of Death to be inflicted: and therefore it was lately Debated, that this Act was but at best, a Temporary Act; and so Egyptians could not be impanelled for their Life: but yet this Act has been still repute a sufficient Warrant for punishing by Death, such as were known, holden and repute to be Egyptians. And I find, that upon the last of July 1611. Moses Schaw and others were Hanged as Egyptians; and it is notour, that immediately after this Act Sheriffs and others did Hang very many, by warrant thereof; and the Act is not Temporary, for it appoints them to be Executed in time coming, after the first of August; and the Act has ordained Egyptians to be proceeded against as Sorners and common Thiefs, who are by our Law to be punished with Death, as is clear by the Narrative of this Act, which bears that the Council had Commanded, That the Sorners and common Thiefs, commonly called Egyptians, &c: should depart forth of the Kingdom; So that the Council has not inflicted the pain of Death upon a new Crime, but has only declared, That Egyptians fell under the old Crime, that was punishable by Death: Nor can it be denied, but that from this and many other Acts it is clear, that the Council has a power to extend and interpret Statutes, even relating to Life and Forefaulture; since the Act appoints only such to be punishable by Death, as are known, holden and repute to be Egyptians: It may be doubted, what can prove that the Egyptians paneled, are known, holden and repute to be such? For which, beside the common Inferences of notoriety adduced by Mascardus and others, in probatione notorij. Our Law allows that such as call themselves Egyptians, or go up and down the Country, bleaking their Faces, telling Fortunes, and speaking the Gebrish peculiar to those people, shall be punished as Egyptians: and ordinarily His Majesty's Advocate chooses such Assizers as know the persons impanelled, to be commonly repute to be Egyptians.  
These who are called Egyptians in Scotland, are called Zigeni, Tartari, Bohemij, all which are remarked as idle Beggars, going about oppressing the people, and cheating them by vain Superstitions, and Fortune tellings: of which sort of people Fritschius has written a Treatise, called, de origine Zygenorum & eorum coercitione; where are to be found, upon what pretext they were first suffered in several Nations, which was, because they did assist several Princes in their great difficulties, having from being Vagabonds, gathered themselves under Captains for that effect, but continuing after Peace made, to grow insolent, they were ordained to be banished in Germany, by an Imperial Constitution, anno 1500. and in France, by the Act of Orleans, anno. 1561. and thereafter anno 1612. which is about the time of this Act; and in Spain. 1492.  

ACT 14.  THe time of this Act, the Secret Council had a Commission from the King, to receive Resignations, and all the Procuratories of Resignations then, did still bear a Power to Resign in the Hands of the Secret Council: But now Resignations can only be made in His Majesties own Hands, or in the hands of His Exchequer.  
THis Act extends to the Decreets of the Admiral and his Deputs, the privilege of having Letters of Horning granted upon them, 
ACT 15.  without the necessity of a Decreet conform, as was the old Custom, and in this it equals the Decreets of that Court, with the Decreets of Sheriffs, and Bailies of burgh's: But by the 29 Act Par. 1 Ch. 2. Whereby poinding is ordained to be granted upon their Decreets; the Parliament has forgot to extend that privilege to the Decreets of the Admiral.  
Observ. 1. That this Act declares the Admiral to be a Supreme Judge; and therefore it has been decided, that he may reduce the Decreets of inferior, or Admiral-deputs, and that he may reduce his own Decreets upon just Reasons, such as noviter provenientes ad notitiam, etc. And which kind of Jurisdiction is competent to no Inferior Judge: and yet the Lords of Session do suspend and reduce his Decreets also, and Advocate Causes from that Court.  
Observ. 2. That by this Act the Admiral is declared to have power of summar Execution; because Strangers and Seafaring men cannot attend as others may; and therefore it is, that such as obtain Decreets before that Court, may use Execution thereupon within three Tides.  
Vid. Observ. on the 16 Act Par. 3. Ch. 2.   

King JAMES the sixth, Parliament 21.  
HIs Majesty held a General Assembly at Glasgow; and in anno 1610. drew up some Articles to be presented to the Parliament, which are set down by Spoteswood, 
ACT 1.  and many whereof are here confirmed.  
By this Act His Majesty's Power to call Assemblies, is declared a part of His Royal Prerogative, Vid. 114 Act Par. 12 Ja. 6.  
The Bishop is to be Moderator, and in his absence any whom he shall Name.  
The Bishop only can Excommunicate, and with such Ministers as he associates to himself, He only can Depose.  
In this Act likewise is set down a formula of the Oath of Supremacy.  
As to the manner of presenting Ministers, it is formerly fully Treated in the Observations upon the 7 Act of the 1 Par. Ja. 6.  
AFter King James the sixth came to the Crown of England, it was necessary that the Laws concerning the Borders should have been altered by both Kingdoms; and by this Act, 
ACT 2.  there is a power granted to His Majesty's Officers in England, to remand from the Courts of Scotland, that is to say, to require His Majesty's Officers in Scotland, to deliver up English Malefactors, who had fled into Scotland: and another Act of the same Tenor verbatim, was passed in England about the same time.  
In place of the old Wardens of the Borders, there is now a Commission granted under the Great Seals of both Kingdoms, to an equal number of Scots and English, who have in effect a Commission of Justiciary; and it was found by the Council of Scotland, that they could not quarrel the Decreets of the Borders, because they proceeded by a Warrant under the Seal of both Kingdoms; but the Laird of Haining having Charged eliot for payment of a sum, for not presenting of a Thief to the Commissioners of the Borders, conform to a Decreet of the Commissioners, finding that he had Forefaulted the Bond, there was a Bill given in to the Council, craving that this case might be remitted to the Commissioners of the Borders, and not Suspended by the Session; because, First, These Decreets being pronounced by the English, as well as the Scots Commissioners; the Session could not be Judges to what was done, by virtue of an English Commission, and because they could not cite the English Commissioners; therefore they could not Reduce their Sentences.  
2. The Commission of the Border is a Criminal Court, and the Lords of the Session are only Supreme Judges in Civils.  
3. The Border is judged by a Law unknown to us; and therefore since the Lords of the Session behoved to Consult them, though they were Judges, it but multiplies Processes and Expenses, to allow the Lords to be Judges in prima instantia.  
4. If the Lords were Judges, all Thiefs, or their Cautioners would offer to Suspend, or Reduce, which would much hinder that expeditness of Trial, which is requisite to stop Thieving in the Borders.  
5. If the Lords here reviewed such Decreets, the Judges at Westminster would do the like, which would be very troublesome and expensive to us: The Council upon this Debate recommended to the Lords to remit the Trial▪ in so far as it was Criminal to the said's Commissioners.  
By this Act, Remanding is only to be granted after full probation of the offences of the persons, Remanded in open Court● but this is now antiquated, and in Desuetude; because it was found by the Commissioners of both Kingdoms, to be unpracticable; if either the Names or proofs were published in open Court, the persons to be Remanded would flee, and the Witnesses might be corrupted: Therefore it was ordered by common consent, that the Commissioners of either Kingdom might Remand privately from the Commissioners of the other Kingdom; and that the person so delated, might be immediately seized upon.  

ACT 4.  THis Act is fully Explained, crim. pract. tit. Rapt.  
THis Act is Explained in the Observations upon the 73 Act Par. 6. Ja. 6. 
ACT 5.   
THis Act Discharging all Actions of Spuilyie committed upon the Borders, 
ACT 6.  prior to His Majesty's coming to the Crown of England, is but Temporary; But from it, it may be observed, First, That the King and Parliament may dispense with the private interest of parties upon a public account: nor does the Act salvo jure, subjoined to the several Parliaments, prejudge or deerogate from this Act, upon pretext that the parties, whose interest was remitted and discharged, were not called.  
2. In all such Discharges of private interest, and Acts of Grace, discharging penal Statutes; exception is still made of Decreets already obtained; for by the obtaining of the Decreet, before that Discharge, the Debt becomes innovated; and a private Debt, of the nature of other private Rights.  
By this and many other, the like observations we may see, that the reading Temporary, and even abrogated Acts, is not useless, since material Observations may be made thereupon.  
THis Act is Explained in the 177 Act Par. 13 Ja. 6. 
ACT 7.   
THis Act ordains Archbishops and Bishops, 
ACT 8.  to build and repair their Houses and Manses, and that the Successor shall have action against the Predecessors Executors, who suffered them to decay, which was very just upon the same Reason, that all Liferenters are obliged praestare hanc cautionem ususructuariam: and where the Houses are in decay, and Repaired by the Predecessor, the next Successor is to satisfy therefore, at the sight of two or three of the Bishops, within the Province; providing that the satisfaction exceed not 1000 pound, if they be Prelates: and 500 marks, if they be other inferior Ministers: and by the 21 Act Sess. 3 Par. 1 Ch. 2. This is renewed as to the Maintaining of the Manse; but the Heretors of the Paroch, where there are no Manse, are obliged to build Manses, for Ministers at the sight of the Bishop, or such Ministers as he shall appoint, not exceeding 1000 pounds, and not under 500 marks; so that in effect, a Ministers Manse may be as dear by that Act, as a Bishops Manse is by this, which seems unreasonable; but their interveening more than 50 years betwixt the two Acts, the price of things, and Fees of Workmen, was much increased the time of the last Act.  
Vide Papon Arrest. lib. 1. num. 15. & additiones num. 6.   

King JAMES the sixth, Parl. 22.  
THe Presentation of Bishops by Kings, begun in the Reign of Lewes King of France, 
ACT 1.  about the Year 821. and was resigned to the Popes by Philip the first; and thereafter, by the Canon Law, the nomination of Archbishops and Bishops, did belong to the Pope only, as the Canonists affirm; but he transferred this power to the Chapters of Cathedral Churches, C. omnes. 22. dist. etc. fin- quaest. 7. and at last in France by agreement betwixt Pope Leo the Tenth, and Francis the First of France; the nomination of Prelacies was after much Debate, granted to the Kings of France; though it be pretended to be a privilege belonging to Kings, in Synodo Aurel. quinta, as the Learned Pith●us has proven; and after that Concordat made in favours of Francis the first. It appears that King James the Fifth, who lived in the same age, and Married Francis the First's Daughter, did with His Parliament Declare, that the Nomination of Bishops did belong to the King of Scotland, and the Provision only to the Pope, Act 125 Par. 7 Ja. 5. But by this Act it is declared, That Arch bishops and Bishops shall be by His Majesty's Licence Elected by the Dean and Chapter of their own Cathedral-kirk, to which they are to be preferred, who being assembled by His Majesty's Warrant, shall proceed to the Election of the Person named by His Majesty; and the Election being Testified under their Seals and Subscriptions, he is to get a right to his Benefice under the King's Great Seal, and to be Consecrated.  
It is fit to know that this Warrant for meeting, is called with us, a congee d'eslire, which is a French word, signifying a liberty to Elect.  
It is fit to know likewise, that with the congee d'eslire, there comes a Letter from His Majesty, recommending such a Person, whom the Dean and Chapter are obliged to Elect, by the words of this Act; and being Elected, the Election is Recorded in the Register of the Chapter: in which Register, all Deeds done by the Bishop, either for Entering Vassals, or granting Tacks of Teinds, are inserted. An Extract of this Election is returned to the Archbishop of the Province, and inserted in his Register; and by him Transmitted to the King, who thereupon grants a Patent to the Person so Elected, who after this is called Bishop Elect of such a See, which passes through all the Seals, and by which he has right both to Spirituality and Temporality; though this Act says, It shall only give right to the Spirituality; This being signified to His Majesty by the said Archbishop; the King grants His Royal Mandate to a competent number of Bishops within the Province, (which cannot be under three, by the 3 Canon. 1 Concil. Nicen.) after which there is no new Gift to the Temporality, as this Act provides: only before his actual Possession, he makes his homage either to the King personally, or to one Commissionated to receive it; of which Oath and Homage, no mention is made in Ecclesiastic Story, till the fourth Counsel of Toledo, anno 633.  
Nota, The Mandate for Consecration, passes only the Great Seal, per saltum.  
It is natural to all Benefices that they should be vacant before they be filled; and the Right should express a modus vacandi; and therefore His Majesty having sent down two Congee d'eslires in January 1679. one in favours of the Bishop of Edinburgh to be Bishop of Ross: and another in favours of the Bishop of Galloway, to be Bishop of Edinburgh; It was advised that the Congee d'eslire, in favours of Edinburgh, should not be presented till Edinburgh was vacant, by his being Elected by the Chapter of Ross.  
It is observable likewise from this Act, that a Bishop has not right to the Temporalities, till after Consecration: For the Act says, That after the Consecration, His Majesty is to Dispone to the Person elected the Temporality; and the same being passed under the Great Seal, the Bishop shall do Homage, and swear Obedience; neither shall it be lawful for him who is admitted to intromet with any of the Benefices, or Rents of the Bishopric, until he have taken the said Oath, and done the said Homage. And thus the English Lawyers, following, as I conceive, that notion of the Common Law, that Episcopus est maritus Ecclesiae: They say, that Election is as the Solicitation; the Confirmation is the Contract; and the Consecration is the Consummation of the Marriage: but where a Bishop is Translated, there needs no Consecration, either by the Canon Law, or ours.  
The old Forms of Election was, that the King sent a Visitor to oversee the Election, and he returned to the King the Decree of the Election, who Confirmed it by giving investiture; and the Metrapolitan was obliged to Ordain the Person Elected, the Investiture of the Spirituality, was by giving a Bible; and the Temporality by a Ring and Baton, Vid. sirmund. form. lib. 2. formul. 6. and the Congee d'eslire succeeded in place of these Visitors.  
BY this Act the Dean and Members of the Chapters of the Cathedral-kirks within this Kingdom, are restored to their Manses, 
ACT 2.  Gleibs, and other Patrimonies belonging to them.  
The Chapter is to the Bishop, what Convents were to other Prelates; that is to say, their Council, of which the Dean, or Decanus was the Head, under the Bishop. By the Civil Law, decanus erat ille qui defunctorum lectos seu feretrum gestabant, vid. Tit. de Decanis, lib. 12. Cod. tit. 17. But by the Canon Law, Decanus comes from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because the Dean proceeded over ten Canons or prebend's; and their decani especially in the Cathedral Churches succeeded in place of the Archipresbyter; and therefore these two are taken in the same sense, cap. ad haec 7. de off. Archid. vide Bengeum de beneficiis, pag. 29. And with us, Deans are Created by the King, He being only Patron of that Benefice.  
The Chapter is called Capitulum by the Canon Law; because it is the little, or inferior Head of the Diocy, and is defined to be Clericorum congregatio sub uno Decano in Ecclesia Cathedrali.  
A Bishop in our Law, nor no other Dignified Person who hath a Convent, can alienat without the consent of their Convent, or the greatest part of them, beside himself, who is the Disponer, in which number, Minors nor absents, are not counted; March 14. 1622.  
If one of the Chapter have two Benefices, he will have two Votes; and albeit the Law Ordains them to be capitulariter congregati; yet now sufficiunt eorum suffragia licet emendicata vel sevaratim impetrata, which is not only by mere custom, as Craig observes; but by Law likewise, Act 3 Par. 18. Ja. 6. and thus an Instrument of Resignation of a Benefice, was found sufficient, though some of the Convent subscriv'd not before the Date of the Instrument, November 16. 1624. Providing alwise that none of their subscriptions be obtained after the Death of the Granter; for than they cannot be said to consent, seeing they are not all alive together: from which it follows likewise, that the alienation is not valid, if any of the Convent, or Subscrivers be Dead before the rest subscrive; where many subscrive separately, the consent of the last is drawn back to the consent of the first, Craig. pag. 91. and albeit Craig be clear, that the consent of the Chapter is requisite, tam in renovatione quam in alienatione feudi: yet by this Act it is for the Vassals case ordained, that the Bishops or Chapters consent is not necessary to the receiving of Vassals upon Composition, or otherwise; but that the direct Superior may receive them by himself.  
Nota, By that part of the Act it seems, that though regulariter, Superiors are not bound to receive singular Successors: yet Kirk-men being Superiors are. If there be no Chapter, or Convent, the appending of the Seal of the Convent, with the King's Confirmation, is sufficient, Craig Ibid.  
The Archbishop of Saint-andrews had of old, the Conventual Brethren of the Priory of Saint-andrews to be his Chapter: but by the 8 Act Par. 19 Ja. 6. power is given him (that Priory being suppressed) to choose seven to be his Convent; and ordains, that the appending of the common Seal of the Convent, shall be sufficient to declare their consent, without their Subscription; which Act is innovat by this 2 Act, Wherein a Convent is particularly set down to him, but nothing spoke of the Seal: and therefore the appending of the Seal is yet sufficient; for this Chapter comes only in place of the seven prescrived by the first Act; and the Subscriptions of these seven were not necessary, ergo, neither is the subscription of this Chapter.  
As the consent of the Chapter, or most part thereof is requisite to an alienation made by the Titular, as the Bishop, Abbot, etc. so reciprocally the consent of the Titular, and most part of the Chapter is requisite to the perfiting of all Rights made by any Member of the said Chapter, of his particular Benefices, or of any Benefice belonging to them in communi, which rule holds in all Conventual Benefices, except that of the Archbishop of Saint-andrews; for it has been decided, that by this Act, any Member of that Chapter therein Entered, may set Tacks, etc. without consent of the Archbishop of Saint-andrews, Novemb. 19 1624. where these Conventual Benefices have Patrons; the consent of the Patron is likewise required, Craig.  
Nota, That the Bishop of Edinburgh is by the Erection of that See, in anno 1633. made Chancellor and Vicar to the Archbishop of Saint-andrews, and so is the first Ordinary, or single Bishop; which privileges belonged to the See of Dunkeld; and so the Bishop of Caithness has not now any suffrage in that Election, because they must be but eight in this Act.  
AFter the Archbishops and Bishops were restored, the thirds of Benefices, 
ACT 3.  out of which Ministers were provided formerly, came to be an unfit and unproportional Stock, for providing the whole Ministry of the Kingdom; and therefore by this Act, there is a Commission granted for planting and providing of Churches; and this is the first of the many Commissions which were granted by Parliaments afterwards to this effect, and their Decreets are to this day called Decreets of Pla● in our practice.  
Observ. 1. The lowest Stipend allowed by the Parliament here, is five Chalders of Victual, or five hundred marks: but by the 19 Act Par. 1 Ch. 1. The lowest Stipend is appointed to be eight hundred marks, or eight Chalders of Victual; and the Decreet whereby this is appointed, is called, The Decreet of Modification; Whereas, if the Stipend be divided, and proportioned as well as modified, the Decreet is called, a Decreet of Locality: and this proportion is so far observed, that the Victual so modified, was found by the Lords to be payable, according to the measure of the Shire, where the Paroch was, and not according to the measure of Linlithgow, where the modified Stipend would not have come the length of the quantity allowed by the Act of Parliament, according to the measure of Linlithgow, June 27. 1667. Minister of Dalrymple contra the Earl of Cassils'.  
Observ. 2. By this Act power is granted by the Parliament to the Commissioners, to unite, or dis-unite Kirks; which Union was likewise allowed by the Canon Law, and is defined to be duorum vel plurium benefi●iorum cum causae cognition a superiore & ordinar●o in perpetuum Canonice sacta connexio, cap. exposuisti de Praeb. So that of old, the Ordinary only could unite Benefices; but now the King, as having come in place of the Pope, grants this Commission to unite, with the consent of Parliament, but the Bishop who is Ordinary, and the Patrons, if any be interested▪ must be likewise called; and the 5 Act Par. 23 Ja. 6. Ordains, that all persons interested in the Union be consenting: By which I understand the Ordinary, the Patron, the Incumbent, and the Parochioners; and this Act appoints, that if there be more Patrons, they shall present, alternis vicibus; and because it may be doubted who should be the first Presenter; in that case it is fit to know, that the lesser Benefice is alwise to be united to the greater; and so the greater remains still the Mother, Superior, and principal Church, cap. recolentes de stat. Monach. and therefore it would seem that the Patron of the Superior Benefice, is to be the first Presenter.  
The reason given by the Canon Law for uniting of Benefices, are, that the Rector, or Parson may be the better enabled to relieve the Poor, and maintain Hospitality, the Churches being so near other, that one Person may conveniently serve the Cure in both: The great poverty of the Benefices united, and the fewness of the Parochioners. But with us Benefices are never united, but where the Stipends are small, the Paroches near, and the Charge little, or no Waters interjected; which qualifications are left by our Law to the Arbitrament of the Commissioners for plantation of Kirks; for none else can unite with us: but by the Law of England, 17. Car. 2 cap. 3. It is lawful for the Bishop of the Diocese, Major of any Town, and the Patron to unite Churches, provided the Churches so united, exceed not the value of a hundred pound Sterling, vide Petrum de perusio in tractatu unionum.  
Observ. 3. That there is power granted by this Commission to prorogat the Tacks of Tiends, when the Tacks-men are burdened with augmentations.  
Observ. 4. That the Sentences of their Commissioners are to have by this Act, the authority and force of a Decreet and Sentence of Parliament; and therefore it is, that in our practice, the Decreets of this Commission can neither be Reduced, nor Suspended by the Lords of the Session, and that because of the 39 Act Par. 11 Ja. 6.  

ACT 4.  BY this Act no Archbishop, Bishop, or other Prelate can set any Tacks of their Patrimony for longer space than nineteen years; nor no inferior beneficed person for longer space than their own life-time, and five years thereafter, but the Tacks otherways set, are not declared thursdays, the Act itself not being conceived irritanter, but only the beneficed persons, who set the Tack for longer time than is expressed in this Statute, are thereupon deprivable, for having contraveen'd the same; for the Parliament having declared that the Contraveeners are deprivable, but not the Tacks null. The Lords conceived that the punishment being under the consideration of the Parliament, at the time of the making of this Act; and they having determined the punishment to be Deprivation; but not having annulled the Tacks: They thereupon concluded, that the Tack could not be declared null, though set for longer time than is declared by this Act, November 9 1624. Hope contra Kinnaird.  
Observe▪ 2. That by this Act it is declared, that all Tacks set for longer space than the time foresaid, shall be Registrated in a Book to be keeped by the Clerk-Register for that effect, else to be null; and therefore Tacks, though for longer years, if they be Registrated, are sufficient, Hop. tit. Tiends. Likeas, it has been found that Registration in the Books of Council and Session, is sufficient, though it be prescriv'd here, that they be Registrated in a Register to be made for that peculiar use, since the Clerk-Register had not made such a specific Register: all which was found in the foresaid Decision, Novemb. 9 1624.  
Observ. 3. The persons allowed to set Tacks for nineteen years, are Archbishops, Bishops, and Prelates: and though by the Canon Law, omnis honor qui ali●ui tribuitur propter administrationem est praelatura: Yet by our Law, he is only a Prelate who has a Chapter; and therefore a Tack set by a Provost, is null, if it want the consent of the Patron; since Prelates can only set without the consent of the Patron, July 12. 1616. Hop. tit. Kirk-men.  
Observ. 4. That exception is justly made in this Act of Tacks, set by Order from the Commission of the Kirk; for in effect these are not set voluntarly, but by Order from a Committee of Parliament, who when they grant augmentations, which burden the Tacks-men, or Titulars of Tiends, do in recompense of that burden, prorogat their Tacks, for as many years as they think fit.  
Observ. 5. That even Tacks for these years, are null, if they have not the consent of the Patron, by the 15 Act Par, 23 Ja. 6.  
Observ. 6. That though Prelates may set Tacks of their Patrimony for nineteen years; yet they cannot set Tacks of their Casualties for longer than their Life; such as Quots of Testaments, etc. as is provided by the immediate Subsequent Act, viz. Act. 5.  
Observ. 7. That a Bishop cannot set a new Tack before the old Tack be expired, as was decided in favours of the Bishop of the Isles against Ascog; for else the present Incumbent might make the Benefice useless to the Successor; and it being against the nature of Benefices, that they should be set for longer time than the Incumbent has Right, it were most unjust to extend this.  
Observ. 8. It may be doubted, if a Bishop may set a Tack, after he knows he is recommended to another See; for that seems fraudulent, though it be ordinary; and if it were allowed, the Intrant Bishop would certainly find all his Patrimony exhausted by such Tacks; and Laics would get very easy Tacks; for the Setter knowing that he were to be removed, would set Tacks for any Duty.  
Observ. 9 It may be doubted if a Bishop who consented to such a Tack, when himself was a Member of the Chapter, can quarrel such when he comes to be Bishop of that same See; for though he may pretend that he is only to consent, and not debate, or inquire; yet this seems inconsistent with reason; for the Chapter is appointed to be quasi Tutor; and so every Member is obliged to inquire; and therefore as he should not have consented, if he had not conceived the Deed to be legal in itself, and fit for the See; so ought he not to quarrel what he has already acknowledged to be fit.  

ACT 5.  THis Act is formerly Explained, Act 11 Par. 10 Ja. 6.  

ACT 6.  THis Act empowers the Lords of the Session to grant Letters for Charging the Parochioners to meet and Stint themselves, for furnishing Basins and Lavers for Administration of the Sacrament of Baptism; and Cups, Tables, and Tablecloths, for Administration of the Communion, and which is accordingly observed; but though the Rubric does generally bear, Furnishing of necessaries for administration of the Sacraments; yet the Communion Elements fall not under this Act; but when Stipends are modified by the Commission for Plantation of Kirks; there is likewise a particular sum modified for the Communion Elements, which the Minister was once found to have right to, though he do not Administrat the Sacrament yearly, but now it is designed that this should be altered, and that that Money should be ordained to be put in the poors Box.  

ACT 7.  BY this Act the Nobility, or Prelates are allowed to Vote by Proxies, if they be lawfully excused.  
Observ. 1. This is not allowed to Barons, nor Burgesses; because the allowance is only specifickly given to Dukes, Marquesses, Earls, Viscounts, Lords, or Prelates; and yet I see no reason for the Distinction; but on the contrary, it seems more reasonable that to the end a whole Shire may be represented; that therefore they may be allowed to deput some to Vote, in case others be absent; for though it may be answered that the power of Proxies is unnecessary in Shires, because if their members be necessarily absent, they may choose others: For to this it may be replied, that they cannot choose new Commissioners, except in case of De●th; whereas the Shire may be much concerned to have their Proxies at any one Diet. Likeas, by the 52 Act Par. 3 Ja. 1. All Freeholders' are allowed to have Proxies in case of lawful absence from Parliaments. It is ordinary also for the chief Burrows to choose, and send an Assistant to attend their Commissioner.  
Observ. 2. By the said 52 Act Par. 3 Ja. 1. absents seem only to be allowed to send their Procurators for excusing their absence; but by this Act they are allowed to Reason and Vote; and therefore it may be doubted, whether a Brother who cannot Vote in his own Brother's Cause, may notwithstanding be admitted to Vote for his Brother as Proxy for another, to whom his Brother is a stranger; since here sustinent personam extranei; but seeing the affection is the same, I think they would not be allowed; nor does the Parliament now allow Proxies in any case.  
It may be likewise doubted, if this Act may be extended to Conventions, since the Act speaks only of Parliaments; and does not add, or other General Councils, as the Act 113 Par. 11 Ja. 6. and other Acts do; but yet the Act 52 Par. 3 Ja. 1. allowing Proxies in absence, speaks of Parliaments and General Councils.  
Obs. 3. It is the King's advantage and interest that Proxies should be allowed; for they are only to be allowed by this Act, where the reason of absence is warranted by the King, His Commissioner, or Council; and so the King may allow Proxies, or not, as He pleases, and needs never allow any to those whom He suspects; which is also the present Custom of England, as to the Peers.  
Observ. 4. That though Letters of Actourney out of the Chancery, be sufficient for absence in other Courts; yet by this Act, the absents must give a written warrant under their own hand.  
THis Act gives instructions to Justices of Peace and Constables, which i● renewed, 
ACT 8.  and somewhat altered by the 38 Act Par. 1 Ch. 2. But by this Act, their Decreets are ordained to receive Execution by Letters of Horning and poinding; and that no Suspension shall be granted, but on Consignation; which Consignation is neither appointed by the foresaid Act 38. nor is it now in viridi observantia: and though by both the Acts, they are ordained to proceed against Cutters of green Wood, Slayers of red and black Fish, etc. yet they are not in use to proceed in such cases; because the Act appoints, that Commissions shall be granted to them for that effect; but these Commissions have never as yet been granted: Though by our Customs, no person can be holden as confessed, except they be personally cited; because else men might be drawn in snares, by Citations at Dwelling-houses; yet here they are allowed to be holden as confessed upon the second Citation at their Dwelling-houses because the subject is small in Justice of Peace Courts.  
This Act is likewise Explained, crim. pract. tit. Justices of Peace; and is Ratified by the 38 Act Par. 1 Ch. 2. Where the Council is allowed to grant them, what further instructions they shall think fit.  
The Council uses to name Justices of Peace, in place of such as die; and it being alleged that all Commissions for Justices of Peace should slow from the King immediately, this was refused by the King, as being contrary to the constant Custom of Council, whom the King allows to name Justices of Peace.  
BY this excellent Act, such as have peaceably possessed their Lands for forty years, are secured by Prescription. 
ACT 12.   
As to this Act it is observable; First, That Prescription is only competent to such as have bruiked by virtue of heritable Infeftments; and therefore he who alleadges Prescription, must allege an heritable Title; but though the Possessor be not expressly Infest; yet if he has possessed the subject, as part and pertinent, it will be sufficient; and therefore a Salmond-fishing was found to be prescriv'd, though it was alleged to be inter regalia, since the Prescriver was Infest cum piscationibus in general, February 7. 1672. But if the Prescriver be Infest upon a bounded Evident, it will not furnish him a valid Title for prescriving, as part and Pertinent, any Land that is without the bounding, November 14. 1671. This Act is also extended to heritable Offices, as to Patronages, Pensions, and all Servitudes, though not expressly mentioned; and though Heretors and Wodsetters are enumerated, sometimes as different from one another, Act 6 Sess. 2 Par. 1 Ch. 2. yet heritage in this Act comprehends Wodsets, and it is even extended to long Tacks; so that it was found, that after forty years they could not be quarrelled, as granted without consent of the Patron, July 7. 1677.  
This want of a Title likewise, and of bona fides, hinders a Vassal to prescrive against his Superior, since the reddendo of that same Charter, whereupon he found'st his prescription, obliges him still to know his Superiors Right; and by this Act for the same cause, a Wodset cannot prescrive, where the Reversion was incorporate, in the body of his own Infeftment.  
Since this Act appoints that His Majesty's Liege's bruiking for 40. years, shall have Right by prescription; it may be doubted, whether prescription can run in favours of strangers, who have not been Naturalised?  
Observ. 2. That these forty years are only to run from the date of their Infestments by this Act; and yet in warrandice, it is only to run from the date of the Distress: but from both it is clear, that the reason is, because till then, they who have such Rights, non valent agere; and therefore the exception allowed by the Civil Law of non valens agere, is allowable in ours, though it be not expressed in this Act, as minority is, whereby it seems that exceptio firmat regulam in non exceptis. Likeas, it was found in the Earl of Lauderdail's case, against the Earl of Tweddel, that Lauderdail being Forefaulted by the Usurpers, prescription could not run against him during that Forefaulture; but where there is a Title, prescription may run, albeit the Defender was absens reipublicae causa, at the least, durst not come home in the Usurpers time, for alleged Crimes committed against them, as was found in White-foords case, the 24 of July 1678. He having killed in Holland Dorislaus, one of the King's Murderers, for the Lords thought that he might have Transferred his Title to another, and if this reason hold it seems that absens reipublicae causa in general, is not sustainable as Minority is, since these who are absent may leave Procuratories to pursue their Rights.  
It may be likewise debated, that such as are vi majore hindered from coming to pursue, as being taken by Robbers, or Pirates, should have the privilege of non valentes agere, though no exception be made of them here, for though the chief design of the Act be, to establish heritable Rights in the persons of singular Successors, who cannot know such accidents, and are secure if they find a forty years' progress: Yet prescription was at first introduced, for punishing the sloth of the Proprietars, amongst other Reasons; and therefore non valens agere, was allowed by the Civil Law and ours.  
It may be also doubted, whether prescription should run against a furious, or mad Man, since they are minors in the construction of Law, and so are to have Curators, and are less judicious oftimes than Minors are; but yet since they are not expressed here, when the Law secured privileged Minors, it is presumed they were designedly omitted; and it were hard to know who are Furious, and Furiosity might continue eighty or ninety years; or a man might feign himself mad, etc.  
Observ. 3. That this Act makes a difference betwixt such as are singular Successors (who must produce for the Title of their Prescription, not only a Seasine, but a Charter) and Heirs who need produce no Cha●ter, but Seasines, one or moe, proceeding upon Retoures, or Precepts of clare constat; But because the Act says, That they shall produce Seasines, one or moe continued, or standing together for the space of forty years; therefore the Lords found; that Seasines must be produced by the Heir, by virtue whereof, he and his Predecessors have bruiked for forty years, during their being Infest; and so where the Father was Infest, and lived thirty nine years; yet the Son not having been Infest, though he and his Grandchild possessed for above 100 years: This Seasine was not found a sufficient Title for prescription, February 15 1671. Earl of Argile contra Menauchtan, and the reason is, because a Seasine is but assertio notarii; and therefore it was too lax a foundation for an heritable Right; and one Seasine may be easilier forged than more Seasines can, and one Seasine being forged, may be laid up in the Charter-Chist, so that the true Proprietar could not, before the Registration of Seasines, know how to improve the same: and since this Act required no Charter from Heirs, it was just that it should require more Seasines, to secure against Falsehood: But since the Act appointing Seasines to be Registrated, the argument of easy Forging is much taken off; Because the Act of Parliament says, That it is necessary to produce a Charter, granted to them by their Superiors and Authors: It may be doubted whether the Superior is obliged to receive a Vassal, though forty years in Possession, except he or his Predecessors can show a Charter from him; and that because, not only does the Act of Parliament say Copulative Superiors and Authors; but without this, there is no Title against the Superior: and some rather think the Superior would b● excluded by this forty years' Possession from his Right of Superiority.  
Observ. 4. Though the Act require Charter and Seasins, yet a Disposition, or Precept of Season would be sufficient▪ for many complete Rights have no Charter.  
Observ. 5. These forty years run, the momento in momentum; and therefore the Prescription wanting a day, was not sustained, July 6. 1671. Though it was alleged that de minimis non ●●rat pr●tor: and it would be severe to take away the old heritage of a Family, for want of one day, or hour.  
These forty years are tempus continuum, and not utile; and therefore the Law subduces not from the Compt, those years in which Judicatures were not patent; or in which, War and Pestilence hindered the Proprietar to pursue, the 30 of June 1671. but it may be here doubted, quid juris, if Judicatures were not open through War, or Pestilence, for the greatest part of the whole forty years.  
Observ. 6. This Prescription runs against His Majesty, as well as Subjects, for the Act says expressly, that these who have possessed forty years, shall not be troubled by His Majesty, or any other, which was expressed, lest 〈◊〉 it might have been alleged that the negligence of His Majesty's Officers, should not prejudge him in not pursuing, etc. Which are the express words of the 14 Act 16 Par. Ja. 6.  
Observ. 7. That by this Act the Prescription was drawn back in favours of these who had possessed forty years, prior to the Act; for drawing back whereof, nothing can be answered, but that this Remedy was previously allowed by the Civil Law; but least the Subjects might have been hereby prejudged, thirteen years are allowed to run from the date of this Act, so that though they had possessed forty years before the Act, they could not prescrive, except they had likewise possessed 13 years after this Act; and though in this Clause the privilege of Minority be not repeated; and that it seems that the Parliament designed not to deduce minority out of so short a time, as 13. years, since having had it under consideration in the Act, they excepted it not in this Clause; yet it was found that Minority was to be discounted even in this case, July 5 1666.  
Observ. 8. That by this Act it is declared, that except the Summons be Called and Continued, it shall not interrupt Prescription; and it is declared, That the Raiser's of Summons shall not be obliged to insist, except where the Summons is called and continued, and the Defenders of new Summoned thereby: and yet the 3 of July 1647. Elle●s contra Scot It was found, that upon a single Summons, one may be forced to insist, which I cannot reconcile with this Clause, except by restricting this Clause merely to the Course of thirteen years here specified, and generally a first Summons Executed, interrupts Prescription, January 26. 1622. And of old, the Execution of a first Summons did interrupt, though they bore no express relation to the Summons, upon which the Interruption was founded: but because there were several Summons at the same party's instance; so that the Execution of one Summons might be obtruded for the Execution of another. It is appointed that the Execution of Summons shall bear express relation to the Names of the Pursuers, and Defenders; and it shall not be sufficient that the Execution does generally relate to the Summons by the 6 Act Sess. 3 Par. 2 Ch. 2. and it had been fit, that the Act had added, that the Execution should bear the nature of the Action deduced in the Summons; for else, where the Pursuers and Defenders are the same, one Execution may be still obtruded for another.  
Observ. 9 Albeit this Act appoints all Rights to prescrive; yet it was found, that Heretors cannot prescrive a Right of their T●●nds against Titulars, except the Lands were Feved, cum decimis inclusis; but that they might prescrive Liberation for bygones' preceding forty years, as in Customs and Feu-duties, which prescrive not▪ quoad the Right, though neglected forty years, February 7. 1666. Earl Panmuire contra the Parochioners of Inverness: Vid. Observations upon Act 57 Par. 5 Ja. 4.  
Observ. 10. That Falsehood never prescrives by our Law: but whether this be in our Law peculiar to that Crime; I have Debated crim. pract. tit. Prescription.  
Observe also from the Narrative of this Act, that the Registration of a Paper in the public Register, is a great Adminicle of Approbation, for the Paper must be left there: Though Falsehood prescrives not, when the Paper is produced, and the Pursuer offers to improve the same: yet it may be doubted, whether when Papers are only called for in an Improbation, in order to a Certification, and for trying of the Defenders Rights; Prescription may not be received against that presumptive Falsehood, wherein the Writs are only Declared to be false, fictione juris, and the true intent of such Improbations, is in effect but to try the Rights civility; and so it resolves properly, but in a Reduction, though that dangerous Certification of presumptive Falsehood is adjected, ob terrorem.  

ACT 13.  BY the 57 Act Par. 5 Ja. 4. Summons of Error prescrive within three years, in so far as concerns the punishment against these who have committed the Error, who cannot be punished after three years: But yet by this Act, the Retour itself may be Reduced at any time within twenty years: which Prescription of twenty years, militats only in cases of Competition, betwixt the several kinds of Heirs amongst▪ themselves; as whether the Heir of Line should be preferred to the Heir of Tailzie; But it does not exclude the clear interest of Blood; for jura sanguinis nullo jure civili dirimi p●ssunt l. 8. ss. de Reg. Jur. and therefore an ●lder Brother was found to have good interest to Reduce a second Brothers Retour, January 11. 1673. By this Act, though such Ret●ures may be Reduced in prejudice of persons so served: yet if the person so served have Disponed their Right to singular Successors, having bona fide acquired Rights, as said is, they cannot be prejudged▪ And in our Law this is still introduced, for the good of Commerce, in favours of singular Successors; for how should they know that the Retour was Reduceable, Vid, Act 18 Par. 23 Ja. 6. Where the like privilege is granted to singular Successors of Bankrupts.  

ACT 14.  BY this Act we find that Executors Nominat had formerly by virtue of their Office, the whole D●functs part of the Executry, that is to say, the whole Executry, if there was no Wife or Bairns; the half where there was only a Wife and no Bairns; Or only Bairns, and no Wife: and the third, where there was a Wife and Bairns: But by this just Act, they are only ordained to have a third of the Defuncts part; and there was good reason for abrogating the former Custom, whereby the Executor was in effect universal Legatar, where there was no other Legatars. Albeit in reason the Executor should only have had some small acknowledgement for Executing the Defuncts Will.  
Observ. 1. That albeit the Narrative of this Act mention only the case of strangers, who are Executors nominat; yet where a Wife is nominat, she has the same Interest, viz. a third of De●ds part, to which she will have Right, beside her own half, or third of the Movables, as Relict; so that all are understood to be strangers in this Act, except the nearest of Kin, who would fall to be Executors by Law; But if one of more nearest of Kin were nominat, it might be doubted what share of the Movables such an Executor would have, whether he might claim a third of Deads' part, as Executors nominat, and a separate Interest as one of the nearest of Kin? It seems probable, that if there were only two nearest of Kin, whereby the Benefit as nearest of Kin would be greater than as Executors, he would only have the half, and nothing as Executor; because by this Act, if the Executors have a third of Deads' part by any other Title, he is not allowed another third by virtue of the Act; and albeit a Wife have both a half, or third as Relict, and a separat third as Executor; yet the Relics part is not by Succession, but is her own proper Interest, arising upon the Dissolution of the Marriage: Whereas the question is here only as to Deads' part: But if there were more in the same Degree to the Defunct than three Persons, whereby the Executors Interest, as nearest of Kin, would be less than a third; In that case he might claim the benefit of this Act; Because though the main and ordinary Case considered, is of Executor Strangers: Yet the Statutory part of the Act is general: and it were against Reason that the nearest of Kin should be in a worse condition than a Stranger.  
Observ. 2. That this Act relates only to Executors nominat; and therefore Executors Dative have no more for Executing the Office, than their Expenses, which is very reasonable: for otherways S●●angers would frequently ingire themselves to the prejudice of the nearest of Kin November 28. 1676. ● Ker contra Ker.  
Observ. 3. That notwithstanding of this Act, where there is an universal Legatar, the Executor gets no part of the Defuncts part, January 15. 1674. petoun contra Leishman. November 29 1626. Forsyth contra Forsyth.  
Observ. 4. That by the Confirmation of the Defuncts Testament, the interest of the nearest of Kin is ipso jure Established, so that albeit the nearest of Kin should immediately Decease before Executing of the Testament, the interest that was competent to him, is Transmitted to his Children, or nearest of Kin, as was found, February 12. 1662. Bells contra Wilkie, Where the three Sisters of Patrick ●ell being Confirmed as Executors, whereof one Deceasing before Executing the Testament, her Son did 〈◊〉 in his Mother's Testament, the third part that belonged to his Deceased Mother, for which the two surviving Executors were found countable to him; but where the nearest of Kin Died before the Testament of the Defunct was Confirmed; It was found that the Interest which would have been competent to that nearest of Kin Confirming was not Transmitted to his Executor; but that there was place for the nearest of Kin, of the first Defunct, February 17. 1663. Forsyths contra Paton: Where it was also found, that a Child having survived his Mother, did not Transmit her third to his Father as a legittim; But that the Father was liable for the third of his Movables to his Wife's Brother, who was her Executor, and nearest of Kin.  

ACT 15.  THere are two cases provided for in this Act; First, That Liferent Tacks of Lands and Tiends, shall not fall under single Escheat, but under the Liferent Escheat; and yet if the Superior, to whom that Life-rent-escheat falls, go to the Horn, that same Liferent-escheat of the Vassal will fall under the Superiors single Escheat; for it is no Liferent in the Superiors person, for he has only Right to it during his Vassals Life-time, but not during his own: as also, for the same reason, if the King Gi●t the Liferent Escheat to a Donatar, it will fall under the Donatars single Escheat; and if the Donatar assign the same, it will fall under the Assigneys single Escheat, not because Assignations makes that movable which was heritable, for Assignations alter not the Nature of the thing assigned; but because the assignee has not these Rights for his Life-time.  
The second part of this Statute provides, that in case any Tacks of Lands or Tiends, contain more Lifere●ts; The First Liferent only shall fall under the Liferent Escheat by the first Liferenters Rebellon: But the remnant Liferenters, or Heirs, shall not be prejudged.  
It is fit here to observe, that if a Tack be set for fifty or sixty years, yet it falls under the single Escheat, for all that falls not under Liferent-escheat, falls under single-escheat; and this, nor no such number of years is a Liferent, but quid juris, if a Tack be set for a hundred years, which is a Life-time by express Law. And since Tacks were the only habile way of Transmitting Tiends of old, and are yet the ordinary way, it is hard that all our Rights to Tiends shall fall under single-escheat.  

ACT 16.  BY this Act, all Reversions, Regresses, or Bonds for making Reversions or Regresses, or Assignations thereto, and all Seasines are to be Registrated within sixty days, after the date of the same; and I find that Sand. decis. Fris. lib. 3. tit. 12. def. 15. shows that they have the same Registration of Hypotheques in immobilibus.  
Observ. 1. This necessity of Registration is only introduced in favours of singular Successors, acquiring posterior Rights; and therefore the nullity of not Registration, was not sustained at the Instance of one who had no standing Right in his Person, March 25. 1633. Nor is this Nullity sustained in favours of the Disponer, or his Heirs, for quoad them, these Rights are valid without Registration; nor was it sustained at the instance of the Son▪ who got the Estate Disponed to him by his Father, with power to the Father to burden it with a Sum, since this Son was found to be no third party, February 27. 1667. And for the same reason it was found, that the Superiors Seasine was not quarrellable by the Vassal: This necessity of Registration being only introduced in favours of such as have posteriour, heritable Rights, June 12. 1673.  
Observ. 2. It is thought that the sixty days, within which Seasins are to be Registrated, are so to be counted only, that either the day upon which the Writs are dated, or the day on which they are Registrated, must be free.  
Observ. 3. That since the Act says, That these Seasins and others shall be Registrated in the places designed in this Act; That therefore it may be doubted, whether when Lands lie within different Shires, but are united, if in that case they are to be Registrated in the Shire where the place lies, at which Seasine is to be taken by the Charter of Union, or at all the places where the Lands lie.  
Observ. 4. Though this Act appoints Renunciations, and grants of Redemption to be Registrated: Yet the Lords found, that Orders of Redemption fall not under this Act, and need not be Registrated, July 29. 1623. But yet they found, that an Infestment of Annualrent could not be taken away by Discharges granted by the Debtor, nor by Compensation of his Debts, in prejudice of a singular Successor, who had Right to the said Annualrent; and that because, First, The design of this Act appears by the Narrative, to be made for security of Buyers; and buyers could not be secured, if such latent ways of extinction were allowed.  
2. An Infeftment of Annualrent is Constituted by a Seasine, which must be Registrated; and therefore it cannot be taken away, but by a Renunciation, or some Paper which must be Registrated.  
3. By the 3 Act Par. 2. Ch. 2. Instruments of Resignation, ad remanentiam, whereby Rights are taken away, are by the same Argument ordained to be Registrated in the same way that Seasins are.  
4. Though by this Act there be not express mention of Rights of Annualrents; yet they are comprehended under the word Wodsets; for an Infeftment of Annualrent is but in effect a Wodset of the Rents; and though this Act is only urged against such as annalȝie their Lands; and that it was urged, that an Infeftment of Annualrent was not an alienation of Lands, but rather a Servitude upon them; yet this is a mistake, for an Infeftment of Annualrent is an alienation, else it could not infer Recognition, as without doubt it does. As also they found, that Renunciations of Annualrents, which were holden of the Disponer, are sufficient without any Resignation, ad remanentiam; though it was alleged, that as a Charter without a Seasine cannot Constitute an Annualrent; so neither can a personal Renunciation, without an Instrument of Resignation extinguish it; But because this Act ordains these Renunciations to be Registrated; therefore they are valid against singular Successors, else why should they be Registrated, January 7. 1680. Mcclelland contra Mushat.  
Since this Act of Parliament requires that all Seasines, Renunciation; of Wodsets, etc. shall be Registrated, I think the Booking of them is necessary: nor is it sufficient (as some pretend) that they are produced, and ma●ked by the Clerk; because (as they say) the Liege's can do no more, and they ought not to be punished for the Clerks negligence; for if this were sufficient, no singular Successor could be secure, and the producer may pursue the Clerk if he book them not, since the Act of Parliament requires actual Registration.  
By this Act all grants of Redemption are to be Registrated, for securing singular Successors; but seeing the using an Order of Redemption, with a Declarator thereupon, will evacuat the Wodset, even as to a singular Successor; and yet he cannot know whether there be such an Order used, and Declarator obtained, it not being requisite that either of these should be Registrated; it seems that singular Successors are yet unsecure: As also, since if a person obtain a Decreet against him to whom he sold his Land, decerning him to grant him a Reversion, conform to his promise, this will be valid against a singular Successor (though the promise was not) and yet the singular Successor cannot know this Decreet, nor needs it be Registrated; and therefore this Register seems yet no sufficient, and adequat Remedy in Wodsets.  
Observ. 5. That by this Act it is provided, that Seasins and Reversions therein contained, given by Provost and Bailies of Burgages Lands needs not be Registrated, neither in Burgh nor Shire, as was decided July 21. 1666. And that Seasins of Lands in Leith need not be Registrated, though it be no Burgh Royal, July 10. 1623. The reason of which Exception was founded upon the exactness of Town Clerks, and the constant Custom thereof, Booking how soon the Season is granted; and so far are Seasins within Burgh exeem'd from such Solemnities, that the Lords sustained a Season within Town, being subscribed by the Town Clerk, though there was no Vestige of it in the Towns Register, nor the Notars Protocal, and was Latent for many years, June 30. 1668. and thus singular Successors were not sufficiently secured by this Statute within burgh's, for though Town Clerks use to Registrat, yet there being no necessity upon them to Registrat, and the Season not being annulled for not Registration; it follows clearly that there is no security; and therefore by the 11 Act Par. 3 Ch. 2. This is altered, and the necessity of Registration is thereby extended to Seasins within Burgh, and to all other Writs, which by this Act must be Registrated.  
THe Form used in losing Arrestments of old, 
ACT 17.  was by the Messengers giving a Testificat under his Hand, that the Arrestment laid on by him was loosed; this being too great a Trust for a Messenger, and they receiving oftimes irresponsal Cautioners. By this Act it is ordained, that Arrestments shall be loosed only by Letters on Bills passed by the Lords, which is now observed, and Caution is found to a particular Servant in the Bill-Chamber, to whom the Trying that the Caution is sufficient, is referred, and the ordinary way to hinder an unsufficient Cautioner, is by getting a Warrant in praesentia from the Lords of Session, for that Effect, after presenting whereof to that Servant, if insufficient Caution be received: The Lords will give Warrant to Arrest de novo; but if the Caution be once found, and the Letters exped; The Lords will not allow upon a Bill, Arrestment to be made de novo, nor recall their Letters, though the Caution be insufficient, the Clerk of the Bills being answerable by his Office for the sufficiency of the Caution.  
THis Act grants power to all who are Infeft in ●o●●est●ies to Judge such as shoot and kill Vennison, 
ACT 18.  and Wildfowl therein, and that by an Inquest, which seems to exclude all other ways of Trial; for inclusio unius est exclusio a●●●rius; and this Inquest was ordained to prevent the partiality, and passion of the Heretor.  
THis Act punishing Drunkards by sinning, 
ACT 20.  is not well enough observed, though it be renewed Act 19 Par. 1 Ch. 2. It seems by this Act that the Kirk is regulariter, founded in the judging and sinning of Drunkards, though it may be alleged that this were to secularize too much Kirk Sessions, which is properly an Ecclesiastic Judicature, and by the Commission granted to the Justices of Peace; The Justices seem to be made the only Judges, as appears not only by the Instructions given to them, but by the said 19 Act Sess. 1 Par. 1 Ch. 2. Though it be alleged that Kirk-sessions have likewise a cumulative Jurisdiction for punishment of all Scandals; for which the 22 Act 3 Sess. Par. 2 Changed 2. is alleged, and the constant practice of the whole Nation; and it was found by the Council, May 1681. The King's Advocate contra the Justices of Peace of Dumfermling; that the Kirk-sessions might uplift such fines as were voluntarly paid to them for such Scandals, without being countable to the Justices of Peace for them.  
THe difference betwixt a Caulp and Hereʒeld, 
ACT 21.  is that a Caulp is is the best aught, or Beast that a man has, which is due to the Chief, or Master, after his Death for protecting his Bairns, given by express paction; whereas a Hereʒeld is the best Beast due to the Master only by Law, after his Tenants' Death: Caulps are here Discharged, but Hereʒelds were allowed, Quon: Attach. cap. 23. But it would seem that Hereʒelds, and all taking of the best Beast is discharged by this Act, albeit indeed they are not.  

ACT 22.  THis Act is Explained in the 45 Act Par. 11 Ja. 6. To which is to be added, that by this Act, the Relics and Bairns of Notars being obliged to bring in their Protocals to the Clerk-register within fifteen days, after any Notars decease; the Register uses to appoint a Deput, called now, the Clerk of the Notars, who draws their Bill, and receives Caution from them; and is by his admission obliged to do Diligence to mark the Books of Notars, and to receive Band for their returning their Books; and therefore Sir William Primrose, for not doing Diligence, was Deposed upon a Bill to the Lords, February 19 1680. Though he alleged that the Wives and Bairns only of the Notars, were obliged to bring in their Protocals, but not he, and he was content for the future, to follow what Instructions should be given him.   

King JAMES the sixth, Parl. 23,  
THere being a General-Assembly held at Pearth in August 1618. by Hadingtoun, Southesk, and Scoon, as His Majesty's Commissioners; 
ACT 1.  there were five Articles therein past, in order to uniformity with England, viz. Kneeling at the Sacrament, Private Communion, Private Baptism, Confirmation of Children, and the observing some Festival Days, for conformity with the Church of England, as far as was possible; Which Articles are here Ratified in Parliament; nor is there any standing Law made since to abrogat them; albeit for Peace's sake, they have not been much observed.  

ACT 5.  VId. observe. on Act 3 Par. 22 Ja. 6. Supra.  

ACT 6.  IN this Act it is warranted, that such as Comprised great Estates for small sums, did notwithstanding, possess the whole Rents for payment of their small Annualrent; and therefore to Correct this, it is ordained by this Act, that the Comprizer shall impute in payment of his principal sum, the superplus of the Rents of the Lands intrometted with by him, and the true reason of the former Custom was, because by the 37 Act Par. 5. Ja. 3. The Lands Comprised were to be adjusted by the Sheriff, with the sums Comprised for, and so the Rent was at first but answerable to the Annualrent, though thereafter all being Comprised, the Compriser appropriated all the Rents, without imputing, as said is.  
Observ. 2. That this Act makes only the Compriser liable for his actual intromission; and it has been found that the Compriser is not bound to intromet: But yet this is so severe to the poor Debtor, and the other Comprisers, all whom the first Compriser may debar, and so suffer the Tenants to Bankrupt, and the Lands to become waste; that therefore if a Compriser once intromet, he is bound to continue his intromission; and where there are Tacks standing, he is bound to do Diligence, February 9 1639. or where there are more Comprisers, the Lords may force the first Compriser to do Diligence, or if he do not betwixt and such a time yearly, they may allow access for the second to enter to the Possession, February 11. 1636. July 1662. Or if the first Compriser exclude any Diligence that the second is using, he will eo ipso be liable thereafter to do exact Diligence.  
Observ. 3. By this Act it is Declared, that upon payment of the principal Sum and Annualrent, and the Expense bestowed by the Compriser, in passing and obtaining Infestment together with the Annualrent of the said sums, and the necessary Expenses bestowed in leading the Comprising, that then the Comprising shall expire ipso facto▪ that is to say, by way of exception, without Declarator, though ordinarily an order of Redemption be used; and not only does payment, or intromission with the Mails extinguish the Comprising, and prove against singular Successors, but even any acknowledgement of payment by the Leader of the Comprising will extinguish the Comprising against those singular Successors, July 23 1662.  
Observ. 4. That the Comprizer is to get allowance of a years Duty, as due to the Superior by this Act, and though he get himself entered for less by the Superior than the years Duty, yet he will get allowance of the full years Duty that was due to the Superior, whose gratuity will be of no advantage to the Debtor, July 2. 1625.  
Observ. 5. That by this Act, what is paid to the Superior bears Annualrent, as do the necessary Expenses; but it may be doubted, if Annualrent be due for Sheriff-fees.  
Observ. 6. That Comprisings are not to run against Minors, but that it is lawful for the Minor at any time within the age of twenty five years to Redeem, which privilege was found not only to be due to Minors when the Comprising is led against themselves; but even when a Minor has right to the legal Reversion, he being himself a second Compriser; for even in that case, a Minor having led a Comprising may be prejudged as well as the Minor against whom the Comprising is led, there being the same parity of reason in both; and though this be not clear by the first words of the Exception: Yet it is clear by these words, And that notwithstanding of the preceding Laws and Practics of this Kingdom, by the which, the Legal Reversion of the Comprised Lands expired within seven years after the leading of the Comprising, from the which His Majesty and Estates hath by this present Act and Statute excepted Minors in all time coming, declaring the same no ways to run against them.  
Observ. 7. That because this Act appointed only the superplus of the Mails and Duties, which exceeded the annualrent to be imputed in the payment of the principal sum, during the seven years of the Legal, but did not expressly extend this to the case of Minority; Therefore it was found that Minors not Redeeming within the seven years, the Compriser had from the expiring of the seven years, the whole Rent of the Land for payment of his Annualrent, without imputing the superplus in payment of the principal sum, because the Act Corrected only that Custom, quoad the Legal, & leges correcti●●● non extendi debent ultra verba directa & expressa, February 22 1639. and therefore by the 10 Act Par. 1 Sess. 3 Ch. 2. This Decision was Corrected, and it was by that Act ordained, that Comprisers should impute the superplus of the Rent, beyond the Annualrent, for payment of the Principal sum, not only during the Legal, but during the whole course of the Minority.  
THis Act extends all the privileges granted to Minors in Comprisings to Minors against whom Adjudications are led: 
ACT 7.  And from this it would seem to follow argumento hujus legis, that whatsoever is competent in Adjudications, is not Competent in Comprisings, for else this Act had been needless; and the Lords would not extend the privileges of the one to the other in many other cases, and so would not allow the Superior to get a years Duty, because the immediate preceding Act did allow Comprisd Lands to be Redeemable upon the payment of the sums Comprised for, and a years Rend for their Entry: But in this Act of Adjudication, there is no mention of a years Duty, and which therefore was thought to be of purpose omited, and so needed a new Law, notwithstanding of the parity of Reason, whereupon a new Law was made, viz. the Act 18 Par. 2 Ch. 2. Whereby not only the Superior is ordained to have a years Duty; but it's expressly Declared, That in all Cases relating to Superiors, Adjudications shall be in the same condition with Comprisings, and consequentially to this last Act, it was found that the Superior might at his option, either Enter the Adjudger, or pay the Sums for which the Adjudication was led, since the Act of Par. Ja. 3 Par. 5 and Act 37. Appoints this in Comprisings, June 10. 1671. Scot of Thirlestoun contra the Lord Drumlanrig: As also upon the same Reason, the Lords found that the Superior was bound to receive the Adjudger, though he could not produce his Author's Rights, Debtors abstracting their Writs, because Comprisers are not bound to produce, February 9 1667. Ramsay contra Ker.  
Nota, That Comprisers intrometting, are liable for their intromissions with the Victual, according to the Sheriff's Fiars, and not according to the Commissars; not only because the Commissars Fiars are made only to Regulat Prices betwixt Tutors and Pupils, and in other Consistorial Cases; but because this Act says, as the 'samine were commonly Sold between Yuil and Candlmas, in the Sheriffdom where the Lands lie.  
THough regularly Infeftments upon Comprisings and Adjudications, aught to be perfected by appending the Great-Seal, 
ACT 8.  yet an Extract of the Debtors Infeftment under the Privy-seal, is here Declared equivalent in so far as concerns the Debtors Heirs, because it is presumable that the Debtor has destroyed or Abstracted the Writs of the Lands Comprised from him.  
Quaritur, Whether this Act should be extended to Adjudications, since they are not mentioned here in the very next Act to the Act anent Adjudications.  
THis Act allowing Bishops to Feu out their Ward-Lands, 
ACT 9  is but Temporary for three years, and so is expired, because not renewed, and consequently Bishops have not leave to Feu out their Ward-lands now.  
AS Ministers Gleibs were to be Tiend-free, so ought the Soums Grass that is allowed to Ministers in place of Gleibs, 
ACT 10.  be Tiend-free.  
The Reason given by this Act, is, because the same is dedicated and appointed ad pios usus, which is no adequat, and sufficient Reason, since Lands mortified to Hospitals, are destinat ad pios usus, and yet are not Tiend-free, that being a special privilege only granted by the Pope to the Coelestines, or Cistertians, and some few other Orders; but ordinarily Hospitals and others are free from Taxations, as Act 1 and Act 15 Par. 1 Ch. 1.  
BY the 2 Act Par. 22 Ja. 6. Deans and Chapters were Restored; 
ACT 11.  but by this Act all the Offices and Dignities of the Chapter are likewise Restored, and it is declared, That all Deeds done since the date of that Act, or to be done thereafter, whereby any Member of a Cathedral Kirk, being an Office or Dignity, hath, or shall be suppressed, or any Land Parsonage, Vicarage, or other Living, belonging to the said Dignity, dissolved from the same without express Warrant from His Majesty and Parliament, shall be null.  
For understanding this Act, it is fit to know that in every Bishopric there are several Dignities, allowed by the Canon Law; by which Law, the Word Dignity is either taken largely, so as to comprehend all Ecclesiastical Dignities, as in cap. denique didst 4. But properly it imports administrationem Ecclesiasticam cum honore vel jurisdictione conjunctam, Gl●ss. in cap. 1. de consuetud. in 6. and generally, all such to whom the Cognition of Causes could be delegated, were accounted Ecclesiastic Dignities, cap. cum olim de offic. legate.  
There are in every Chapter, and Bishopric with us some of those Dignities, but of a different Rank and Jurisdiction, not only from those in the Canon Law, but the Dignities in our own Bishoprics differ from one another, though all of them agree in this, that those Dignities which were appointed at the foundation of the Bishoprics continue to this day, and the foundations are the Rule, and are very different.  
The ordinary Dignities common to all, are the Dean, the Archdean, the Chanter, the Chancellor, and the Thesaurer.  
The Office of the Dean has been fully Explained in the Act 2 Par. 22 Ja. 6.  
The archdeacon (called improperly by us Archdean) is the Archidiaconus of the Canon Law, who though they be inferior to Deans, yet they are in effect the Bishop's Vicar, and have the Chief Jurisdiction next to him; being in the Canon Law oculus Episcopi, their Office in that Law was to examine such as were presented to the Bishop, and to put them in possession of their Benefice after their admission; as also, to visit the Diocy every three year, if the Bishop be not present, and to oversee the Manners and Living of the Clergy.  
The Chanter is in the Canon Law called Primicerius, because he is first of the Order of the Singers; and by the Greek Church 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his employment was to oversee such as sung and read in the Church; and with us the Sub-chanter is a dignity called Succentor in the Canon Law, and that likewise he was allowed a dignity by the Canon Law is clear, Innocent cap. 3. inter dilectos de excess. prael.  
The Chancellor was so called, because he kept the Seal of the Church, Cujac. ad tit. ut Eccles. bon. sine diminut. conserv. he was likewise Superviser of the Bibliotheck of Schools, and of these who taught the Clergy, cap. penult. & ult. de translat. Epis. & cap. veniens de reg. & trans. ad monast.  
In England the Chancellor is in effect a Church-Lawyer, who judges for the Bishop through the whole Diocy, and is universal Commissary; whereas these only are called Commissars by that Law to whom the judging in particular Places or Cases is committed: But with us the Chancellor is still a Churchman, and the Province of Saint Andrews has its Chancellor as well as the special Bishoprics, the Bishop of Edinburgh being the Chancellor of the Province of Saint Andrews.  
The Thesaurer is he who did oversee the Thesaury, and all things else belonging to the Church, who in the forecited cap. cum olim, is accounted to have Ecclesiastic Dignity.  
It is observed by Bengeus, de beneficiis Ecclesiasticis, Renat. Chopin. and other Canonists, that both the Jurisdiction and Precedency amongst those Dignities, is now consuetudinary, and altered much according to the custom of the several Places; and it is so with us where they are regulated according to the special Foundations or Custom, if these be wanting or lost.  
THis Act is Explained in many other Acts concerning the privilege of burgh's Royal. 
ACT 12.   
THis Act is formerly Explained in Act 47. Parl. 11. Ja. 6. 
ACT 13.   
BY this Act all playing at Cards or Dice in any Inn or Alehouse is discharged under the pain of forty Pounds, 
ACT 14.  and all playing at Cards or Dice even in private Houses is forbidden, except where the Masters of the Families play; and all playing at Cards and Dice, even though the Master play; and all Horseraces are so far restrained, that the Gainer cannot have Action for any thing he wins above an hundred Marks: But yet it was found that the Loser is still liable in payment, and therefore the King's Advocate was found to have interest to compear, and crave the Money to be consigned, November 12. 1668. Park contra Somervel. Where it was debated if this was vitium real, and might be taken from an assignee, though he knew not how the Money was dew, for else this Act might be eluded, by filling up the name of an assignee.  
By the Civil Law, Tit. 43. lib. 3. l. 1. Cod. de aleatoribus, he that is overcome at such Games is not obliged to pay, and though he pay, he, or his heirs have repetition; and by the Canon Law, Churchmen who use such Games cannot be promoted to Benefices, cap. 11. the excess prelate. but yet wagering seu sponsio was by that Law allowed, l. 17. §. ult. ff. de prescript. verb. and so our Horse-races were not condemned by that Law, though they are by ours; for that Law did think that, nullam turpitudinem continet in se spo● sio; nam inde rixae oriri non solent; but our Law did condemn Horseraces, because they occasioned great Idleness and Expense: This Act is still exactly observed, but is not extended to other Wagers, such as that Ships will arrive at such a day, or in such a place, which was not found to fall under this Act, which speaks only of Cards, Dice, and Horseraces; it seems that this Act would not be extended to any other Game ex paritate rationis; but yet I find that by the late Decisions of most Nations, these are not sustained tanquam otiosi & aleatorii contractus qui nihil in se continent praeter inanem animorum concertationem, Stockman. decis. 134. Molin. tract. de usur. quest. 3. num. 97.  
By the Civil Law likewise, though wagering was allowed, yet where either of the Parties did certainly know the thing whereupon he wagered, but concealed his knowledge; as for instance, if a man should wager that such a man should be dead before a year elapsed, and that he knew him to be already dead, the Law would not allow Action upon that Wager, because in effect that were to cheat, and accordingly our Courts in Scotland have most justly decided.  
Wagers likewise upon the deaths of Princes are discharged as giving occasion of jealousy; as also Wagers concerning the event of Public Undertake for the good of the Country, such as the success of Arms, etc. and that, lest men should be tempted, either to wish the Armies of their native Country not to prosper, or to reveal their Secrets to the end they may not prosper, vid. Zipeum in not. juris belli, lib. 3. in fin. there is such an Act as ours made by Lewis 13. of France amongst his Statutes, cap. 138. & seq.  

ACT 15.  THis Act is fully Explained in Act 200. Parl. 14. Ja. 6.  

ACT 16.  THis Act is fully Explained in the 114 Act Par. 11 Ja. 6.  
THis Act Discharging that a Peck should be taken to the Boll, though with consent of Parties, 
ACT 17.  was made to prevent extortion, upon the same Ground that Usury is Discharged; but yet it not having been observed for a long time, the Council stopped a Gift that was granted thereof, as to bygones, till His Majesty should be acquainted.  
THis Act concerning Dispositions made by Bankrupts, is fully Explained by me, 
ACT 18.  in a Treatise apart already Printed upon this single Act.  
THis Act Regulating the Prices of all Writs and Seals, is for the most part either in Desuetude, 
ACT 19  or is innovated by the 16 Act Sess. 3 Par. 2 Ch. 2. Wherein new Regulations are set down; and from this Act it is observable, that the Secret Council may make prices in all such Cases; for this Act Ratifies only their Act; and though the Act Ratified bear, this Act to have been made by the Secret Council and Session; yet the Act of Parliament which does Ratify that Act, Ratifies it only as an Act of Privy Council, and so insinuats that the Privy Council hath power to Regulate both the price of Session, and Exchequer.  
These Regulations of Prices in our Law, are like to the notition mentioned, Cod. de ann. & cap. lib. 1. Tit. 52. quae singulis offi●iis delegabantur quibus continebatur quantum singuli pro dignitate & ●fficio pro libellis mandatis codicillis accipiendis vel insinuandis pendere quantum pro annona & capite accipere deberent.  
FOr understanding this Act, it is fit to know that Annualrents are only due by our Law, either by Statute, 
ACT 20.  or Paction, so that regularly they are not due otherwise.  
They are due by Statute, either by the Act of Sederunt▪ 1613. appointing, That where Cautioners are distressed, and forced to pay, they shall have Annualrent from the Term that they pay, though the Bond wherein they are Cautioners bear none; yet this is in effect ex pacto, because it arises from the Clause of Relief, this being a Damnage incurred by them, or by this Act of Parliament, by which Annualrents are due, after the Party is Denunc'd, though the Bond whereupon he is Denunc'd, bear no Annualrent, upon the same ground that in the Civil Law usurae debentur ex mora in bonae fidei contractibus, l. 32. §. 2. ss. de usuris: So that as by the Civil Law they were due ex pacto vel ex mora; they are due only with us ex pacto vel ex lege, which is the same thing almost, since lex in hoc casu apud nos sundatur in mora; for though there may be mora sine usuris, yet by this Act there are never usurae sine mora: But this Denunciation must be at the Head Burgh of the Shire where the Debtor lives: Denunciations at the Mercat Cross of Edinburgh, being a Warrant only for Caption, but not inferring Annualrent, which may seem strange, since Annualrents are by this Act inferred after Denunciation, because of the Debtors negligence; but the reason of the Decision is, that the Lords thought the Debtors did not know exactly when they were Denunc'd at Edinburgh; but it has been found that the Debtor is liable in Annualrent, after he is Denunced at the Head Burgh of the Shire, though the Horning be not Registrated, since the Act only appointed Denunciation; and yet there can be no Caption till the Horning and Executions be Registrated; and thus it is clear that Caption, and Payment of Annualrents are very different effects of a Horning, since sometimes Caption will follow where Annualrent cannot, and sometimes Annualrent will follow, where Caption cannot, February 11. 1673. Smith contra Wauch.  
Annualrents are sometimes due, without either express Law, or Paction, because of the tacit, and presumable consent of the Party; as if a Party pay Annualrent for one Term, or if he promise to pay bygone Annualrents, though he promise not for the future; yet January 13. 1669. Hume contra Seaton The Lords found that he ought to pay constantly Annualrent for the future, though the obligation did bear no Annualrent: or from the Principles of Natural Equity, as in the price of Lands, which pay Annualrent, though none be pactioned, because the Buyer has the Rents of the Lands: Or in Tochers, because they are given ad sustinenda onera matrimonii, and the Husband intertains the Wife: Or where the sum is ordained to bear Annualrent after her Marriage, to whom it is left quo casu, before Marriage the Lords found that Annualrent was due, since matrimonia debent esse libera; but yet regulariter, annualrent is not due in cases alimentary. And a Father providing his Daughter to a Sum for her Portion, without mentioning any thing of annualrent; the Lords would not decern annualrent, though annualrent was only said to be omitted there, through the ignorance of the Notar; but because of the presumed will of the Father, they modified the aliment equal to the annualrent: But so unfavourable are usurae usurarum, called usurae judaicae by the Doctors of the Civil Law, that an obligation to pay annualrent for annualrent, if it were not paid at the Term, was not sustained, though it was alleged that here pactum & mora, were joined with Equity, the Woman to whom they were due, being a poor Widow, who behoved to borrow Money to live upon, if her annualrent were not paid, and to pay annualrent for that Money, which she so borrowed, January 26. 1669. Lady Braid contra the Earl of Kinghorn. It is fit to know that the Statute 2. Robert 3. appointing annualrents not to run against Minors, is now in Desuetude, though it would seem reasonable, that their mora should not prejudge them; but Minors Money do still bear annualrent by our Law.  
The King uses to pay Annualrents for the balance of his accounts de facto, but is not obliged thereto by Law.  

ACT 22.  THis Act is Explained, Crim. pract. tit. Falshood.  

ACT 23.  NOta, That Usury is excepted from this Commission to uplift Money, due by penal Statutes, etc. Ergo, Acts against Usury seem penal Statutes. It is observable, that though by this Act it be Declared, That Commissions for penal Statutes be not put to Execution, till they be authorised by the Lords of Secret Council; yet this is too much in Desuetude; but the Lords of Secret Council do use to Discharge them, till they acquaint the King.  

ACT 25.  THe Laws of the twelve Tables, contained several Sumptuary Laws, though there was then little Luxury, and particularly at Burials: and Saint Chrisostom condemns feigned Mourners, whom we call Saulies', because they pray for the Souls of the Dead. Vid. 14 Act Par. 3 Ch. 2.  
THis Act appointing Houses in Edinburgh to be Sklated, and Letters of Horning to be direct to that effect; 
ACT 26.  shows that the Parliament may Dispose upon private Estates, ob bonum publicum, vid. Act 6 Par. 1 Sess. 3 Ch. 2. It may be argued from this Act, That if the Town of Edinburgh could have made such Acts by their own authority, this Act had been needless.  
THis Act is Explained in the 106 Act Par. 7 Ja. 5. 
ACT 27.   
THis Act is Explained, crim. pract. tit. Usury. 
ACT 28.   
THis Act discharges any man to Hunt or Hawk at any time, 
ACT 31.  who hath not a Plough of Land in heritage, under the pain of an hundred pounds, but it is now in Desuetude.    


K. CHARLES I. Parliament I  
KING CHARLES' the First having come to Scotland to be Crowned, 
ACT 1.  in anno 1633. The Parliament does by this Act, grant Him, not only a Subsidy upon the Land-rent; bu● likewise the sixteen penny of all Annualrents, the Annualrent being then at ten in the hundred; but because the Annualrent was thereafter brought down from ten to six: Therefore by the 49 Act Par 1 Ch. 2. It is Declared, that the said six of the hundred, shall be free of all Retention, and other public Burdens whatsoever.  
There is no Immunity allowed by this Act, to any from this Taxation, save the ordinary Lords of the Session, and Mortifications to Universities, Colleges, and Hospitals; and this was the first time the Lords were separated from the Advocats, and other Members of the College of Justice: and yet by the 23 Act of this Parliament, all the Immunities and Privileges that ever were granted to the College of Justice, are Ratified; and though it may seem that this Act being posterior, derogats from the former, yet specialia semper derogant a generalibus.  
By this Act likewise, the Lords of Erection are to be Taxed in the same way that they were before the Erection.  

ACT 2.  THis Act is but a continuation of the first Act, and shows the way of uplifting the Taxation thereby given.  

ACT 3.  THe Parliament having granted by the 8 Act Par 20 Ja. 6. Power to the King to appoint Apparel for Judges and others, because that Act was but Temporary; they by this Act continue the same to Our Sovereign Lord and His Successors, who now is; which certainly is wrong Printed, and Reads ill, for the words should run, Our Sovereign Lord that now is and His Successors.  
Observ. 1. That Acts referring any thing to the King's Majesty, and not mentioning His Successors, are but Temporary, else this Act had been needless.  
Obs. 2. That these err who think the Parliament cannot delegat their Power; for in the former Act and this, it is clear that the Parliament did delegat this Power; and it is Declared that the King's Letter, Regulating this affair, shall be equivalent to an Act of Parliament; and this same Parliament 1633. did grant a Commission to Revise the Laws, and did Declare, that what they did should have the force of Laws without Reporting to the Parliament: and the Lords of Articles, anno 1681. Did grant a Commission, with a Parliamentary Power to some to Revise the Earl of Argiles Rights, and the Commission of Teinds is of the same Nature.  

ACT 4.  THere having been great Debates in anno 1633. concerning the securing the Protestant Religion, it was at last agreed, that the old Acts made by King James, were in themselves sufficient; and the best that could be fallen on, as being made when there were greatest fears of Popery, and by the help of which, the Protestant Religion grew to the consistency it is now at; and therefore the Parliament acquiesced in this short Act, Ratifying in general the former Acts made for securing the Religion, Vid. Act 1 Par. 3 Ch. 2.  

ACT 5.  THe former Parliaments which had determined Ministers Stipends, forgot to provide Schoolmasters; and therefore the Privy Council did provide them by an Act of Council; and though it may seem strange, that the Privy Council could impose a burden, though for a just Cause, yet that their Act is here approved, and the Secret Council are made Judges to all Processes concerning Schoolmasters deuce, though now the Lords of the Session are the only Judges; nor are there any such Processes intented before the Privy Council.  
Since by this Act the Planting of Schools is referred to the Bishop with the consent of the Heretors, and most part of the Paroch, it would appear that they, and not the Kirk-session where they live, should have the placing of them: and albeit it be alleged that the Schoolmaster of the Paroch is by the 17 Act Par. 3 Sess. 5 Ch. 〈◊〉 To be Clerk to the Kirk-session, and therefore they should have the chief interest; Yet this consequence is not sufficient, and the Act whereupon it is founded, is likewise abrogated: This is conform to the Reformed Church of Saxony, wherein cura scolarum pastoribus, ac superintendenti commissa est Carpz, lib. 1. tit. def. 77.  
BY this Act all Mortifications by Gift, Legacy, or otherwise, are declared not to be alterable to any other use, 
ACT 6.  than the special use to which they were Destinated by the Mortifier; but yet if that use become unlawful ex post facto, so that the persons in whose favours they were Mortified, be dissabled to Possess, I think they should fall to the King, as Caduciary, if the Property has been once Transferred, and the person upon whom it was Transferred, became thereafter uncapable, for quae sunt nullius sunt Domini Regis, and thus the Mortifications made to Monastries, fell not back to the first Proprietars, or their Heirs, but to the King; But if the Property was never Transferred, but before the first acquisition, the person to whom the same was left, was incapable to receive the Right Mortified; as if a Man should leave a Legacy to his Brother, who were a Capushian, whose Monastery, and not himself are only capable of Legacies; it seems that if the Mortifier knew, that his Brother was uncapable, and that it would fall to the Monastery, that in that case also, the Mortification should belong to the King, and should not be retained by his Heirs, as a due punishment of his Fault: But if the Mortifier knew not the same, it were more reasonable to determine, that the Mortifiers Heirs should retain the Right, Vid. Tit. Cod. de caduc. tollend.  
Thomas Mudie having left a sum to be employed on the building a Church in the Grass-Mercat of Edinburgh, The Magistrates thereof were upon their Supplication, allowed to build a Steeple, and buy a Pale of Bells with the Money, because a Church was useless wanting a Stipend, though this Act against inverting Pious Donations was objected; for the Parliament thought, that if a Mortification be left, which cannot take place, either because it is against Law, or is useless, the Parliament may allow the same to be fulfilled by an equipollency, that being more suitable to the design of the Mortifier, and better for the Commonwealth, than if the Mortification should become extinct, which is consonant to the Civil Law.  
George Heriot, having appointed by one of the Statutes of his Hospital, that nothing should be altered, though for the better; and one of the Statutes bearing, none should lodge within the Hospital, save Students; it was doubted, if some unfurnished Rooms which the Overseers could not furnish for want of Money, might be set out to such as undertook to furnish them, for some few years' Tacks! And it was thought that they might, since that was no case which any wise man could think to exclude, if he had had it under his consideration, and these Rooms might be separated from the Hospital for that time by a Wall.  

ACT 7.  THe Act here Ratified is the 27 Act Par. 11 Ja. 6. Whereby all such as trouble Ministers for seeking of their Livings, or siklike quarrels, and put violent hand in them, are to be punished with the tinsel of their Movables, albeit no slaughter or mutilation follow; Which Act is here extended to Archbishops, Bishops, and all others having power to Preach, and Administrat the Sacraments; From which it is observable, that Acts in favours of Ministers, can not be regularly extended to Bishops, though a Bishop may seem to be a Minister and more; and because the former Act mentioned only siklike quarrels, as for seeking their Stipends, etc. and that this might have been eluded by forged pretexts; therefore this Act extends the same to all Invasions: and from both these Cases, it may be urged, That Acts of Parliament are stricti juris, and cannot be extended de casu in casum; else this Act had been unnecessary.  
Observe likewise from this Act, a case wherein all Landlords, Heretors, and Chiefs of Clans, upon whose bounds the Invaders of Ministers stay for ten days, the same being intimat to them, are to be punished as Connivers; This Act is Ratified by the 5 Act Par. 2 Ch. 2. By which it is further appointed, That if any invade Ministers, either in their Persons, or Goods, not only within their Houses, but Paroches, the Parochioners shall be liable to pay his Damnage, if they cannot apprehend the Malefactors. The Parliament there likewise Ratifies two Proclamations of Privy Council, which ordained the same thing formerly; and which Ratification is a great proof of the Councils Power, in things relating to the Government.  
TEinds are declared to be the Patrimony of the Kirk; and therefore were not annexed to the Crown by the 29 Act Par. 11. Ja. 6. But because the leading of other men's Teinds, 
ACT 8.  occasioned great confusion; therefore in anno 1628. There were three several Submissions made, one by the Laic Heretors, a second by the Churchmen, and a third by the Burrows, wherein they refer to His Majesty what should be paid by every Heretor for his Teinds, to the Titular or Tacks-man; and accordingly His Majesty pronunced three several Decreets, dated in September 1629. Wherein he appointed, that the rate of all Tiends should be the fifth part of the constant Rent of what each Land paid in Stock and Tiend, where the same are valued jointly, and where they are valued apart, the rate is according as the same were valued by the particular Commissioners for Valuation of Teinds, with deduction of a fifth part, called, the King's Ease; and that all Teinds should be bought at nine years' purchase, where they consisted in Money; and if they consisted in Victual, that they be first liquidat into Money, and then they should be bought at nine years' purchase: And if there were but Temporary Rights, than the price is to be abated; or heightened proportionally; and the said Teinds being so bought, the Hetors are to relieve the Titulars of His Majesty's Annuity, and Ministers Stipends pro rata, and in case of wrong done by the Commission, there is place for appeals left to the Parliament.  
The Submission made by the Bishops, did only relate to Teinds, payable to them, whereof they were not presently in Possession; and therefore where any Churchmen were presently in Possession of any Tiends, His Majesty by His Decreet Arbitral, did not ordain them to sell the same; but they are ordained to sell such Tiends as belong to them, that were not in their present Possession, which they were ordained to sell at nine years' purchase, with deduction always of His Majesty's Annuity, forth of the ex●ress of the Bolls and Rents, arising to the Submitters, after the expyring of their present Tacks. The determination upon the Submission of the Burrows, differs nothing from the former two; but that the said's Burrows are to pay the Annuity forth of the superplus of their Tiends, if they should be found to exceed what is due for entertainment of their Ministers, Colleges, Schools, and Hospitals, and the Terms of payment, of what is to be paid for these Tiends, is declared in all the three Decreets Arbitral, to be betwixt Yule and Candlemass; such likewise as had Church-lands and Tiends, Erected in their favours, in Temporal Lordships, did grant Commission to surrender their Rights in His Majesty's Hand, upon the condition therein expressed; and therefore by this Act, the Commission granted by His Majesty for providing the Ministers serving the Cure with competent Stipends, is here Ratified, and it is declared, That the lowest Stipend shall be eight Chalders of Victual, or proportionally in Silver, except such particular Kirks occur, wherein there shall be good reason to go beneath the same; But it seems that by this Act, they can only go beneath the said quota, where there have already Valuations been led; the reason whereof seems to be, because till a Valuation be led, it cannot be known whether there be more free Tiends in the Paroch, then will amount to eight Chalders Victual: As also, because this High quota was granted to the Minister, in respect of the power granted to the Heretors, to value their own Tiends; therefore, where the Heretors had not taken the benefit of the Valuation, the Minister ought not to have the high Stipend: But yet the Commission for Plantation of Kirks, do use to modify less Stipends, where it is notour, that the Paroch is not able to bear the same; and that albeit that quota was condescended on in the Commission of Surrenders, and is renewed in the 19 Act of this Parliament.  
By this Act it is likewise declared, that where Valuations are lawfuly led against all persons having interest, that the samin shall not be drawn in question upon the pretence of enorm laesion, at the instance of the Incumbent, not being Titular, or His Majesty's Advocate, except in the case of Collusion, which is declared to be presumptione juris & de jure, where the Valuation is led with diminution of the third of the real Rent presently paid, as is clear by the last Paragraph of the ninteenth Act.  

ACT 9  THis Act contains that Revocation drawn by Sir Thomas Hope His Majesty's Advocate, which is said to be of the things which gave the first rise to our late Troubles; for therein His Majesty, not only Revocks all Alienations of Lands formerly annexed, and all Rights made to His Castles, Meadows, Woods, and Parks; but His Majesty likewise Revocks all Rights made to any Church-lands, and all Infestments of Erections of Abbacies, Prelacies, etc. Spirituality, or Temporality; and a Reduction of these Rights, was thereupon raised: Notwithstanding that by the 2 Act Par. 18 Ja. 6. His Majesty to remove all mistrust, does for Him and His Successors, perpetually Confirm all Erections, Confirmations, Patronages of the said's whole Benefices, and promises in verbo principis, never to quarrel the same. But what was done afterwards being voluntar, and upon the submission of all parties concerned, did not at all impinge upon the former Statute.  
It is likewise declared in the end of this Act, that the possession of any thing hereby revoked, shall not prejudge His Majesty; and therefore it may be urged, that forty years' possession of any Lands, or others falling under this Revocation, would not debar the King by Prescription; and yet it was found, That if the King be Denuded in favours of a Donatar: This Revocation does not interrupt Prescription without a Reduction.  

ACT 10.  THis Act is wrong placed, for it should be after the 14 Act; for the Superiorities of Kirk-lands, being by the said 14 Act, Declared to belong to the King; The said's Superiorities are by this Act annexed to the Crown; but they could not have been annexed to the Crown, till they were first declared to belong to it.  
THere is here a Dissolution of the Annexation, made in the former Act, 
ACT 11.  in which it is Declared, That this Dissolution shall not warrant the Alienation of His Majesty's Castles, Woods, Parks, Meadows, and Offices; which is conform to the 235 Act Par. 15 Ja. 6. Whereby all Dispositions of these are declared null; and though the Lomonts of Falkland be Dissolved particularly by the 19 Act Par. 18 Ja. 6. Yet it is Declared particularly in this Act, that they shall remain inseparably with the Crown.  
BEcause by the Act of Prescription 1617. It is appointed that such as might be prejudged by that Prescription of forty years run before that Act 1617. might intent Actions within thirteen years after the Date of that Act; 
ACT 12.  and because the King could not intent particular Summons against every person, whose Rights he might challenge; Therefore it is allowed by this Act, that His Majesty might interrupt the said Prescription by open Proclamation, at the Mercat Cross of Edinburgh, and other particular Mercat Crosses, where the Lands lie; and at the Mercat Cross of Edinburgh, Peer, and Shore of Leith, against such as are out of the Kingdom. But least this interruption might have too much alarmed the Subjects: It is upon the Kings own Concession declared, that the said interruption should be Restricted to the annulling of Rights of the annexed Property of the Crown, and the un-annexed; whereof account hath been made in the Exchequer, and of the principality unlawfully Disponed by His Majesty's Predecessors, against the Laws and Acts then standing, and to the annulling of Erections, and other Dispositions of whatsoever Lands, Tiends, Patronages, and Benefices, formerly belonging to the Kirk, and since annexed to the Crown, and of any other Lands, or Patronages, which should any way justly belong to the Kirk, or Crown, and of whatsoever Lands and Benefices mortified, and devouted to pious Uses; and of Regalities; and heritable Offices; and of the change of holdings, from the ancient holding of Ward and Relief, to blench and Taxed Ward, since the year of God 1540 years.  
The Earl of Southesk having Right to the Muire of Montromant, as heritable Forester, intented a Declarator against the adjacent Heretors, concluding that they should be debarred from Pasturing therein. Against which it being alleged, 1. That they had prescriv'd the right of Pasturage. It was Replied, that the Prescription was interrupted by this Act. To which it being Duplyed, that this edictal Interruption was introduced without a Warrant, the Act 1617. having allowed thirteen years for the Subjects to interrupt, without any Reservation in favours of the King. 2. This is neither His Majesties annexed Property, nor is it a part of that unannext Property, whereof the Ferms, or Feu-duties have been counted for in Exchequer, since the year 1455. and so the interruption which is restricted to these, reaches not to this case. 3. This Pasturage is but a Servitude, and this Interruption extends only to Alienations, but not to Servitudes, or things of so small moment. To which it was Triplyed, that as to the first, there was no necessity that there should have been a Reservation in favours of the King, by the Act 1617. since the King not being mentioned in the Act, which was the Rule; There was no necessity to reserve His Right by way of exception; but this Act of Parliament has supplied that want, though there had been an omission in that Act. To the second, it was Triplyed, That the interruption 1633. being to secure His Majesty against Prescriptions, upon the Act 1617. It was just that it should extend as far as the Act 1617. And these words, Whereof the Ferms have been Counted for in Exchequer, are only Demonstrative, and not Taxative; the counting in Exchequer being only a public Evidence of His Majesties Right; and therefore, where there were other public Evidences of His Majesties Right, as strong as this His Majesty's interruption by this Act, behoved to take place, else it should not extend to secure His Majesty, as to any thing, for which there were blench, or Ward-holdings; This Act mentioning only Feu-ferms; it should not extend to His Majesty's Castles, or other things, for which he gets no advantage. 3. This has been counted for, in so far as the Sheriff counts for the Blench-duties; and Southesk pays Blench-duties for his Forest. 4. By an Act of Parliament in King David's time, 1357. and another 1367. All the King's Forrestries are ordained not to be Disponed without consent of Parliament, and so are to be looked upon as a part of the annexed Property. To the third it was Duplyed, That this Act, as the Act 1617. was to be extended to Prescriptions; and there were things of less consequence than Servitudes secured against by this Act, such as change of holdings, Patronages, etc. This case is not decided.  
The reason why this Act restricts itself in this Clause to the year 1455. is, because in that year was the first Act for annexing any Property to the Crown, viz. The 41 Act Par. 11 Ja. 2.  
It being alleged upon this Act, that the King behoved to produce the Letters of Publication at the several Mercat Crosses, and the Executions thereof, else His Majesty could not have the benefit of the Interruption. It was answered, That the Act of Sederunt of the Session, did indeed appoint Letters of Publication; but two years after that Act, this Act of Parliament was made, allowing the King this Interruption, wherein the Parliament did certainly consider the Publication, as having preceded, & statuit lex hoc casu super praesumpto, and so the Letters of Publication and Extentions, need not now be produced; Which Answer the Lords found Relevant, November 1682. Sir William Ker contra Grubet and others.  
Interruption being thus made by the King, does last for forty years, so that no Prescription can run against the King, till forty years after the date of this Act; and that though the Executions and publication required by this Act of Parliament, cannot be found, for every particular Shire: It may be likewise doubted, whether Prescription should run against the King, whilst he was out of the Country: For which, vid. observe. on the Act of Prescription 1617.  

ACT 13:  BY this Act, the Parliament Rescinds all Rights of Regality made by King Charles, King James, or Queen Mary, belonging to Abbots, Priors, or any Beneficed person; reserving alwise to the heritable Bailies, and Stewarts of the said's Regalities and Stewartries; their Rights granted to them, prior to the said's Erections; for ordinarily even when these Regalities were in Beneficed persons own hands, they made heritable Bailies; but I confess, I understand not what is meant by the Stewart of a Regality; for Stewartries and Regalities are distinct and inconsistent Jurisdictions; a Stewart being a Judge in the King's Property only, having the same power that a Lord of Regality has of the Lands Erected in the Regality holding of himself, and the Lands holding of him: But this Act has in this followed the words of the Act of Annexation 1587.  
By the Act of Annexation 1587. Act 29. All Regalities belonging to Archbishops, and Bishops, were thereby Annexed, because their whole Lands and Temporalities were then Annexed; but being restored in anno 1606. their Regalities are hereby reserved to them.  
UPon the Submission and Surrender made by the Lords of Erection, and other Titulars, 
ACT 14.  it is condescended to by this Act, That His Majesty shall remain, not only Superior to the Lords of Erection, but even to all the Vassals, who held formerly of any Abbacy, Priory, or other Benefice Erected; and therefore, by virtue of this Act, they may hold of the King, if they please, but according to an express condition in the surrender itself; there is by this Act reserved to the Lords and Titulars of Erection, who subscrived this Surrender, the Feu-mails and Feu-ferms due by their Vassals, ay and till the King pay to the said's Lords and Titulars of Erection, a thousand marks for ilk Chalder, or an hundreth marks of Feu-duty, payable to them, for there is nothing allowed to them for the Service of Tenants; Though the Lords of Erection did not expressly reserve to themselves the Casualties that might fall to them by their Vassals, during the not Redemption, for they reserved only their Feu-mails, and Feu-ferms; since inclusio un●us seems to be exclusio alterius; and the Superiority being by this Act declared to belong to the King, the Casuality should follow the Superiority; yet by a Decision, the 24 of July 1632. The Lords found, that the Lords and Titulars of Erection, had Right to the Casualties of these Superiorities, ay and till they be Redeemed; but by the 30 Act Par. 1 Ch. 2. It is declared, That the Fevars shall be bound to make payment of their Feu-ferms and Duties contained in their Infestments, to the Lords of Erection, ay and till they be Redeemed; but it is not clear whether Escheat and Nonentry will belong to the King, or Fevars, except it be comprehended under the general word Duties.  
Though the Feu-mails and Feu-ferms be reserved to such Lords and Titulars of Erection, as subscriv'd the Surrender, so that it may seem necessary to prove that these who seek Feu-duties, did subscrive, or else that these should belong to the King: yet because the Surrender cannot be found, the Lords found it sufficient, that the Titular acknowledged the Kings Right, conform to this Act: But they found that they had not Right to the Arrages and Carrages of these Kirk-lands, because by this Act, all the Rents and Duties are Declared to belong to the King, and the Reservation in favours of the Superior, is only of Feu-duties, if they found no abatement of the Feu-duty, in respect of Vastations, since the Feu-duties were small, and the Fevar might have gained by prior and subsequent years, June 27. 1662. Watson contra Elleis. Because the Superiorities of these Kirk-lands, is by Act declared to belong to the King; therefore the Lords of Erection cannot pursue a Reduction of these Feus'; nor is the concourse of His Majesty's Advocate sufficient, except there be an express Warrant under the King's Hand for that effect.  
Albeit it be uncontroverted by this Act, that the King has no right to the Feu-mails, and Feu-ferms, due by the Vassals of Erection, until he redeem the same, as said is; yet it may be doubted, whether the King has Right to the Feu-mails, and Feu-ferms of the Lands, which pertained in property to the Lords of Erection, before the said Surrender, and which were mentioned in the old Infestments, before the date of the Erection, and that without paying for the said's Feu-ferms, and redeeming them as said is, as he is obliged to do in the case of the Feu-ferms, due by the Vassals of Erection: and it may be urged for the Lords of Erection, that the King has not right to the Feu-ferms of their proper Lands, except he Redeem them; And that because, 1. The Act of Parliament is relative to the Submission made by the Lords of Erection, whereupon the Act proceeds; but so it is, that by the Submission, they resign the Superiorities, reserving only to themselves the Feu-duties, till they receive satisfaction; but it is expressly provided, that under this Resignation, their proper Lands should not be comprehended, but that they should hold the same of His Majesty, as the same was holden before the date of the Erection; and so the meaning is, that though they should hold the same in Feu, yet they should not be obliged to pay the Feu-duties, till they receive satisfaction.  
2. It were absurd that the Lords of Erection should not quite the Feu-duties of their Vassals, till they received satisfaction; and yet they should be obliged to quite the Feu-duties of their own proportion, in which they had far more interest, than in the Lands of their Vassals, without any satisfaction.  
3. Custom is the best Interpreter of Law, and by the general Custom of the Nation, the Lords of Erection have never counted for the Feu-duties of their proper Lands.  
4. There being a Reservation made in the first part of the Act, of the Feu-duties only in case of payment; The Reservation in the second part of the Act, must in Annalogie of Law be constructed to be burdened with the same quality, except the contrary were expressly declared in the Act. but on the other side it may be more strongly urged for the King, that he has Right to the Feu-ferms of these their proper Lands immediately, without any satisfaction, and that for these reasons; 1. Because by the Act of Parliament, they are expressly to hold their proper Lands of the King, and to pay him the Feu-duties mentioned in the old Infestments, without any Clause obliging the King to make satisfaction; Ergo, The King is not obliged.  
2. The Parliament having had that Reservation, of making satisfaction under their view, in the case of the Vassals, they had certainly renewed it in the immediate subsequent case of the property, if they had not expressly designed the contrary.  
3. By the Charters granted under the Great Seal, to the said's Lords of Erection, since the Surrender, and this Act of Parliament, they are expressly by different reddendoes made liable, both to the general blench Duty, due for the whole Lands of the Erection, both Property and Superiority, and for the Feu-dutie of their own proper Lands: Ergo, This Feu-duty of their proper Lands, is due by their Charter, which is a Feudal Contract, and that without any Reservation of payment.  
4. The blench-duty of the Erection, and this Feu-duty is due upon different accounts: Ergo, The payment of the Blench-duty is not sufficient; for the Blench-duty is due by the Lords of Erection, for the interest that they have in the Vassals Lands, and for the Tiends, and for the property that was Feued the time of the Erection: Whereas this Feu-duty is due only for their own proper Lands Feued out before the Erection.  
And to the contrary Objections it may be answered, That Acts of Parliament are not to be extended de casu in casum, especially in such favourable Cases as this, which tends most ungrately to take from the King a part of that which himself gave freely.  
2. There was very good Reason why they should be liable to pay the Feu-duties of their proper Lands, without any satisfaction; because the King having raised a Reduction of all the said's Erections; The Lords of Erection did Redeem themselves from the hazard of this Plea, by this surrender; and the reason why the quality of satisfaction was adjected, as to the Vassals, and not as to the property, was, because the Lords of Erection had no interest in their Vassals Lands, but the Feu-duties; and so it was fit they should get a satisfaction for these; though the satisfaction was made easy for the King: But as to their proper Lands, it was just, because of the great advantage they had by them; and that they were by this Act secured in the property of them. It was just that the King should get the Feu-duties without any acknowledgement; and without this the King had got nothing for securing them, when he might have with Success quarrelled their Rights; And the pretence of the Vassals, not having paid these Feu-duties, for their proper Lands formerly, is of no import, since the negligence of the King's Officers cannot prejudge him; and the Times were Rebellious, since the year 1633. Nor is this true, though it were Relevant; for the Earls of Roxburgh, and others have paid.  
Because these Arguments and Difficulties gave some Colour to the Lords of Erection, to think that they were not liable, therefore they used to get ease as to bygones; but they are made liable still for the future, in the payment of these Feu-duties.  
The Superiorities belonging to Bishops and their Chapters, is reserved to secure them against the Annexation, 1597. and their Superiorities, are likewise reserved from the Annexation mentioned in the tenth Act of this Parliament.  
Some think it fit for His Majesty's Interest, that these Superiorities should be Redeemed; for he might thereby have a great and sure Revenue, and a great dependence of Vassals; and it seems also fit for the interest of the poor Vassals.  

ACT 15.  HIs Majesty having obliged so far the Heretors, as to get them the leading of their own Teinds, It was thought fit by this Act, to give him some small interest in the Teinds, viz. Out of every Teind-boll of the best Wheat, ten shilling; of the best Tiend-bear, eight shilling; of the Teind-meal, Oats, Pease, and Ry, six shilling; and where the Oats will not render half Meal, three shilling.  
Where the Victual was of inferior goodness, power is granted to the Commissioners to modify accordingly, and in order thereto, they did proportion the price on the several Shires, which stands as a rule in the payment of Annuity to this day: Though it be said in this Act, that the Annuities shall be paid out of all Teinds, except the Teinds paid to Bishops, Ministers, Colleges, Hospitals, and other pious uses; yet it was thought, January 3 1632. Renton contra Ker. Though there was no formal Decision, that decimae inclusae, are liable in payment of no Annuity, for they did not belong to the Titular, nor needed the Heretor buy them, in contemplation of which Liberty, this Annuity is granted, and in effect they are likewise looked upon as incorporate with the Stock, and participating of its Nature.  
This Annuity was found to be made debitum fundi by this Act of Parliament, and so to oblige all singular Successors; because the Act says generally, that the King shall have Right to all the Annuity bypast, and to come, though it be not expressly declared, that singular Successors shall be obliged, as our Law ordinarily uses to do, when it resolves to make any thing debitum fundi.  
It is Declared by this Act, That Annuity shall not be annexed to the Crown, whereby the Crown got a great prejudice, since thereby the King would have obliged every man to a Dependence upon him; whereas Commissions having been granted to sell to every man his own Annuity, the King made no advantage thereby.  
THis Act is formerly Explained in Act 71 Par. 14 Ja. 2. 
ACT 16.   
BY this Act it is Declared, That every man shall have the leading of his own Teind, the Teinds being first valued; 
ACT 17.  and all Teinds in Scotland may be valued, except 1. Where the Lands are Feued, cumdecimis inclusis and Confirmed before the year 1589. as was found, January 21. 1631 2. Teinds belonging to Ecclesiastic Persons, and whereof they were in possession the time of the Submission, as is clear by the foresaid Determination upon their Submission, conform to which by the 9 Act 2 Sess. 1 Par. Ch. 2. All Valuations led against the Bishops, or Beneficed Persons, being Ministers, since the year 1637. of any Teinds, Parsonage, and Viccarage, wherein they were in possession by Leading, or drawing of Rental-bolls, are declared null; but by a Letter the 13. of May 1634. It is declared, that where such Teinds are set by Bishops, or Beneficed persons to Tacks-men, that eo casu the Heretors shall have the buying of their own Teinds, but prejudice to the Bishop, etc. to enjoy the same after expiration of the Tacks, as they were accustomed; the beneficed persons always having the prerogative of buying, if he pleased, and this to be extended to the Heretors, and Tacks-man of the Teinds of Laick-patrons. And conform to this, the Lords of the Commission decided, February 1679. Hamilton contra Earl of Roxburgh; though it was there alleged, that this would prejudge Churchmen, since it would discourage Laics to take Tacks from them at due Rates: but Teinds holden of Collegiate Kirks, are subject to buying and selling, as other Teinds, the 3. of February 1632.  
Though it would appear by this Act, that every man shall only have the Leading, and Drawing of his own Teind, after the same is valued, since the Act says, the same being first truly and lawfully valued: Yet if the Heretor intent a Pursuit for Valuation, he will, during the Dependence, get liberty to lead his own Teinds, if he offer Caution to pay his Teinds, conform to the Valuation that shall be led, July 14. 1630.  
But this benefit of leading is only granted to Heretors, by the the foresaid Act; and therefore no Liferent Tacks-man hath this benefit, except the Liferent be Constitute, by Infestment of Conjunct-fee, or the like, November 30. 1631.  
Neither can Rentallers, or Tenants crave this benefit, ex eodem capi●e, March 8. 1630. It is only granted likewise to such Heretors, whose Teinds were drawn before, but not to these who paid Rental-bolls, July 24. 1635. And yet the contrary is found the 3. of July 1643, But the Heretor may have the leading of his own Teinds, though he does not instruct a public Infeftment, if he show that he is not in mora, to be Infest, and that he is the person who should be Infest, July 6. 1642. But the Teinds belonging to Churchmen, whereof they were in possession the time of the Submission, are not to be led upon Caution; and yet by a Missive the 9 of May 1634. His Majesty declares His Favour not to be extended to their Tacks-men, being Laics; but that during these Tacks, the Heretor may lead, he finding Caution, as said is.  
By the Submission, the Decreets following thereupon, and the express words of this Act, Ministers are to be provided before the Heretors have liberty to buy, or value; and therefore the Titular may allocat what Teinds he pleases, towards the Maintenance of the Minister; and the Heretor eo casu cannot force the Titular to sell, February 17. 1645. But though the Kirk be not provided, yet the Heretor may buy his Teinds, if he be content to undergo his part of the augmentation when it shall be granted, the 20. of January 1645. Earl of Hadington contra the Laird of Bairfuird. So that it appears, that albeit a Titular may assign any one man's whole Teinds towards the Minister's Maintenance, when there is no present provision; yet if there be any, though it be small, he may not; but the same should burden proportionally, the whole free Teinds of the Paroch, where there is a present provision, and where the Teinds are once bought, the Heretor will not be burdened, as long as there is any Tack-duties free in the Titulars hands, February 15. 1643. But the Tacks-man will not be found liable in the said Relief, January 27. 1635. But if there be no free Teinds in his hand, than the Buyers, and all the Heretors must be burdened with the augmentation, January 16. 1635.  
It seems that the Titular cannot assign the Teinds of one Paroch for paying the Stipend of another; For by this Act it is said, That the Teinds shall be burdened with the Stipend of the Minister serving the Cure of the Kirk: But the Commission allocats sometimes the Teinds of one Paroch, to make up a Stipend to the adjacent Paroch, if the Minister of the Paroch, out of which the free Teinds are allocated, be competently provided; for the Commission thinks the Teinds, as the Spirituality of the Church, to be burdenable in general; and yet if this argument prove any thing, it will prove there can be no free Teinds as long as there is any Minister in Scotland unprovided competently.  
BY this Act the Exchequer is Declared a Sovereign Court, and power is given them to pass, and discuss Suspensions, 
ACT 18.  and to Decern in all things concerning His Majesty's Property, and all things concerning the Annuities of Teind, which was the particular reason of making this Act at this time; but because of this Act giving them power to decide every thing relating to the Property; therefore by the 59 Act Par. 1 Sess. Ch. 2. It is declared, that the deciding concerning the validity, and invalidity of Infestments, shall only belong to the Session. And whereas this Act allows the Exchequer only to proceed in things relating to His Majesty's Property and others depending thereon, that Act declares they have liberty to judge in all things relating to His Majesty's Rents and Casualties, as they might have done before the year 1633. And it being doubted, whether the Lords of the Session were Judges competent to the Discussing Suspensions, raised against the Customers, by the Masters of Manufactories, who pretended, that as to goods imported for the use of their Manufactories, they were free from Custom; the Lords did justly determine, that though the Exchequer were only Judges Competent to Discuss Suspensions, as to Customs, or any part of His Majesty's Revenue, where the same were due by a clear Law, or constant use of payment; yet the Lords of the Session were Judges Competent to clear what was due by Law, and to interpret Acts of Parliament.  
Nota, The Act of Parliament alleged to be made upon the 22. of May 1584. Concerning the Exchequer, Ratified by this Act, can neither be found amongst the Printed, nor the Un-printed Acts.  
Though by virtue of this Clause, and a Letter from His Majesty, It is declared That the Exchequer are Judges competent to liquidat Wards and Marriages, and that the Exchequer has decided in some such cases; Yet regulariter, the Session are only Judges Competent to such Actions; and albeit the Session be only Judges Competent to Contravention of Lawborrows; yet after the Contravention is Decided in His Majesty's favours, if the party, against whom the Decreet is obtained, Suspend the same, the Charge being at His Majesty's Instance, it ought only to be Judged by the Exchequer, that being a Casuality already stated, and the point of Law being already determined; although it be alleged, that this being a Suspension of the Lords of the Sessions Decreet, it should only be Discussed before them ob continentiam causae.  
Though by the 25. Act Par. 16. Ja. 6. It is appointed, that all Hornings' henorth Dee, shall be upon no less than fifteen Days; Yet that is to be restricted, as has been there observed in Cases before the Council; for by this Act, all Charges of Execution before the Exchequer, are to be upon twenty days upon the North-side of Dee, and ten days upon the Southside of Dee.  
THis Act is the first Commission granted for valuing of Teinds, conform to the Surrender, 
ACT 19  and Decreets Arbitral pronounced thereupon; which Commission is renewed in several subsequent Parliaments: And for clearing somewhat of The Form of Process before that Court; it is fit to know, that all Diets before the Commission, are with Continuation; and because of their uncertain sitting, there needs no Wakening; all Procurators appearing before them, should have Written Warrants, but this is not in observance; but consents by Advocats must be subscribed by Advocats, else Decreets given thereupon are null, July 20. 1664. And Executions are sufficient by a Sheriff in that part, July 10. 1643. and thereupon the Defender will be holden pro confesso.  
The Commissioners did of old, appoint Sub-commissioners in every Presbytry, who were to be chosen by the Presbytry itself, and five to be a quorum, for trying the Valuation of every man's Teinds, and before them Process were intented at the instance of the Procurator-fiscal, or the Heretors; and their Reports being returned to the Commission, were allowed. The Injunctions given to them, than were, That none should be Witnesses before them who were not worth an hundred Pounds of free Gear; that such as dwell within the Presbytry should be Cited upon ten days; and such as were without it, upon twenty; that the Depositions should be Subscriv'd by the most part of the Sub-commissioners, and the Clerk; and when any man would make use of another's Servant, as a Witness, that the Master should produce him upon his hazard; that where both used Probation, not the greatest number, but the clearest Deponers should be preferred; and no Witnesses to be received but only ten for each Party, which was thereafter Exponed to be ten for each Room, July 18. 1634.  
The Probation is ofttimes allowed to both Parties in this Court, and where it is single, it is called The Prerogative of Probation, and is much contended for; Wherefore it is thus regulated, viz. either the Teinds are drawn ipsa corpora, by Titular, or Tacks-man, and then they have the sole Probation allowed them, to prove what the Teinds were worth, they proving that they led seven years of fifteen before the year 1628. And though after so long a time, this cannot be proven; Yet the proving immemorial Possession is found equivalent; or else they have Rental-bolls paid them, & eo casu they have the sole probation likewise, they proving twenty years possession, of uplifting Rental-bolls, condescending upon the quantity, and quality: Or in the third case, the Heretor has Tacks of their own Teinds, for payment of Silver-Duty: and then there is joint Probation allowed, both to Heretor and Titular; albeit the Heretor have the benefit of a Conjunct Probation; Yet he may refer the worth to the Titulars Oath, before Witnesses be received, but not after, February 21. 1623. but where the Titular has the sole Probation, the Heretor cannot eo casu lead any Probation of the Stock, except it be for certification, id est, except where the Heretor summons the Titular, who was in possession of Drawing of the Teind, to prove the worth thereof, with Certification to him, if he appear not, the Heretor will prove the worth of the Stock, quo casu the fourth part is Declared to be Teind, February 19 1634. and February 24. 1643. Where the Stock and Teind are valued jointly, the Teinds are made the fifth part; but where the Titular and Tacks-man has the sole Probation, the Heretor has the fifth part down, as the King's Ease; and therefore where the Titular takes a Diet for proving of the Teind by itself, the Heretor may take the same Diet to prove the Stock, that in case the Heretor fail, he may have the King's Ease, July 8 1642. Where there is joint probation of Stock and Teind, the present Rent should be proven, as well as the Rent in all time coming, else the same is null, January 19 1631.  
There are two Diets granted for probation in this Court; and if the first be not made use of, the Term may be circumduced, and the second will not be granted, February 2. 1643. and though Diligence be Extracted after the Diet; yet if it be Extracted before the other party crave the Term to be circumduced, the same will be sustained, November 22. 1634.  
By this Act also it is Declared, That where Valuations are lawfully led against all Parties having interest, and allowed, they shall not be called in question at the Instance of the Minister, not being Titular; nor at the instance of His Majesty's Advocate, for His Annuity, except the Collusion be proven, to have been to the Diminution of the third of the just Rent presently paid; and therefore all Reductions upon this head, are at the instance of His Majesty's Advocate; but it may be doubted, whether His Majesty has any interest, where the party has bought his own Annuity; though it may be alleged, that even in that case, the Decreet is Reduceable, together with the Alienation founded thereupon, if subsequent to the Decreet, because the Exchequer has sold upon a mistake, occasioned by the Collusion, albeit regulariter with us, Venditions are not quarrellable, as in the Civil Law, though made infra dimidium.  
By this Clause it is likewise Declared, that this Collusion shall be probable by the party's Oaths, and thereupon it has been doubted, whether this Clause be Exclusive of other probation, and in Meldrums case against Tolquhon, before the Commission in January 1672. It was found, that a Decreet of Valuation might be Reduced upon this Clause, if it were proven by Witnesses that the valuation was led far within the third of what the Teinds were then worth.  
THese Acts are but Temporary. 
ACT 20 & 21.   

ACT 23.  BY this Act the Liberties of the College of Justice are restricted to the Senators of the College of Justice; and this is the first time that the Senators of the College of Justice were divided from the other Members; but thereafter the privileges of the Senators are Communicated to Advocats, Writers, and others, by the 23 Act Par. 1 Ch. 2. vid. observe. on that Act.  

ACT 24.  THis Act anent the privileges of Royal Burrows, is innovated by, and therefore shall be Explained in the 5 Act 3 Sess. 2 Par. Ch. 2.  

ACT 25.  THis Act gives a very large Commission to the Lords of Secret Council, to grant to the Justices of Peace, and Constables, whatever power the Parliament could have granted them; but this being in effect but a Commission, may be alleged to expire with the King and Parliament who gave it, as all Mandates last no longer than the Mandator; and the power being given to the Privy Council indefinitely, without adding, for the time being; it may be urged, that it could last no longer than that Commission of Council; and from this many new doubts may be started, which shall be elsewhere considered; but however the Council does still grant Instructions by virtue of this Act.  

ACT 26.  THis Act impowering the Lords of Session to exact 12 pennies of the pound of all sums discerned by them is now obsolet.  

ACT 28.  THis Act concerning the privileges of Baronet's, is fully Explained in my Treatise of Precedency; but from this Act it is observable that the Convention of Estates have been in use to Ratify and approve general Orders granted concerning Honours; though it be generally believed, that the Convention of Estates can only grant voluntary Taxations, and nothing else; and I formerly observed that they were in use to regulate the Mint also.  

ACT 29.  VId. observe. on Act 13 Par. 18 Ja. 6.  
THough by this Act the Clangrigor were abolished, and they ordained to alter their surname, 
ACT 30.  because of their bangstry; yet because of their good Services done to His Majesty, during the late Rebellion, they were restored in anno 1661.  
It has been always believed, that no Clan or Family can change its surname in Scotland, without express Act of Parliament, or Act of Council; for that might occasion great confusion, and might be a ground of cheating the people in their Evidents and securities. But any private man may, as we see daily in Tailies; and it does not follow, that because the Parliament only can force men to change their surname, that therefore they cannot do it voluntarly themselves.  

ACT 31.  BY this Act it is expressly declared, that because particular Acts of Parliament, and Acts of Ratification, are made without hearing of Parties, that therefore the Lords of Session shall Judge in these cases, without respect to those Acts, according to the private interests of parties. The immediate occasion of making this Act, was the case betwixt John Stuart of Coldinghame and the Earl of Hume, which was this.  
The Earl of Bothwel having been Forefaulted, the Priory of Coldinghame was Disponed by the King to the Earl of Hume, which Earl of Hume, set in Tack apart of the Teinds of the said Priory, to the Laird of Wedderburn, but thereafter the Earl of Hume having entered in a Transaction with John Stuart, Son to the Earl of Bothwel, he suffers by Collusion, a Decreet of Parliament to pass in anno 1621. whereby John Stuart was not only rehabilitat as to his Blood, but the Forefaulture Rescinded, in so far as concerned his Right to the Priory of Coldinghame, upon a pretext that he had a commendam of it settled in his person, before his Father was Forefaulted, whereupon Dowglass of Evelaw, pursuing the Laird of Wedderburn for a Spuilzie of Teinds in anno 1627. he obtains a Decreet, notwithstanding of very unanswerable grounds, then alleged; because the Lords of the Session would not call in question the Act of Parliament 1621. Notwithstanding of the Act salvo subjoined to the Acts of that Parliament; for the Lords found, that the Session as an inferior Judicature, could not canvas special Acts of Parliament; but because the Subjects might be extremely prejudged in their private Rights by such Acts of Parliament; therefore the foresaid Claus● was inserted in this Act, and that it might extend to this Case, though anterior it is expressly declared in this Act, that this was the meaning of all former Acts Salvo; and accordingly the Lords of the Session did in February 1679. Repone the Laird of Wedderburn to Debate upon his just Rights, notwithstanding of the Act of Parliament 1621.  
By this Act several private Rights and Ratifications, are excepted from this Act salvo; But since the Act salvo proceeds upon the principal of natural Reason and Justice, it seems that even these Exceptions are questionable, for else the Act salvo should signify nothing; For these who had the interest to obtain private Acts of Parliament, would likewise have the interest to get them excepted from the Act salvo; and upon this Reason it was doubted, and not Decided, whether Exceptions from the Act salvo, made in private Rights, though not repeated in the Act salvo, were sufficient to secure these Rights against the Act salvo; for though it might be alleged, that in these there is a speciality from this case, since the Act salvo being posterior, and simple, Annuls and Derogats from the former Reservation; yet even there it may be alleged, that it cannot derogat, since in the former special Act, the Parliament Declared their special Inclination, that it should not Derogat.  
Nota, The Act salvo jure is never Voted in Parliament, because it is but an Act in Course; and for the same Reason, Ratifications are not Voted now, since no man can be concerned in either; albeit of old, I find that Ratifications were passed in Parliament in the form of decreets, and so must have been voted; but it seems strange, why Acts for granting of Mercats, and Imposing Customs for the maintaining of Bridges, should not be Voted: And in the Parliament 1681. The Reports of the Articles thereof, as to these, past the last D●y, without being Voted, which was opposed by some as irregular; because there the consent of some parts of the Nation was requisite. But I conceive, that this likewise proceeded from the numerousness of the things that were brought in, and the general acquiescence of the Members, and the time they were to sit being so short, and it seems securer to settle these by a vote.    


K. CHARLES II. Parliament I.  

Session first.  
ALbeit KING CHARLES the Second did hold a Parliament at Saint-Iohnstoun, in anno 1650. yet this Parliament, being the first after His Majesty's happy Restauration, is by the Inscription, Entitled, The First Parliament of KING CHARLES' the Second; though that Parliament 1650. is not Rescinded by the general Act Rescissory, which is the fifteenth Act of this Parliament; Nor by any other special Act: And so that Parliament stands still in force, so that this Inscription seems unwarrantable.  
THe Rebellious Parliaments in the former age, 
ACT 1.  did choose their own Precedent, though the Chancellor ought to have presided in all Courts, as is insinuated by the 40 Act Par. 5 Ja. 5. but this they did, to have the Precedent of Parliament Depend upon Them, and not upon the King; and therefore by this Act it is Declared that the Chancellor is ratione officii, to preside in all public Judicatures where he is present.  
Observ. 1. That this Act says, That the Lord Chancellor, and such as shall be nominated by His Majesty, shall preside; and therefore if the King please, He may Nominat another Precedent, though the Chancellor be present: And I find that His Majesty has Nominated others to preside where the Chancellor was present.  
Obser. 2. That though (when the Chancellor is absent) His Majesty can only Nominat another Precedent; Yet this does not exclude His Majesty's High Commissioner from the power of Nominating a Precedent, since he has mandatum cum libera; and Middleton did Nominat the Earl of Crawfurd to preside in this Parliament, when Glencairn, than Chancellor, went to London.  
Observ. 3. That the Chancellor is to preside, not only in the Parliament, but in all other public Judicatures; and therefore though it was pretended by the Thesaurer, that notwithstanding of this Act, the Chancellor could not preside in Exchequer, though he was named in the Commission; Because the Exchequer was rather the King's Chamberlains Court, than a public Judicature, in which the Thesaurer was chiefly entrusted, because he was chiefly to be answerable; yet this pretence was groundless, since the Exchequer is a Judicature which Hears, and Discusses Causes, relating to the Revenue, and is Declared a Judicature by the 18 Act Par. 1 Ch. 1. But by a Letter in anno 1663. The Chancellor is Discharged to preside in Exchequer; and this shows his innate power to dispense with Acts of Parliament, which relate only to Government, and His own Service.  
Observ. 4. That though by virtue of this Act, it may be pretended that the Chancellor may preside in the Justice, or Admiral Court, if he pleases to be present; Yet I conceive he cannot come to any of these Courts, without a special Nomination: and even this Act says, That the Chancellor, and such as shall be nominat by His Majesty, shall preside.  
This Act likewise sets down the Oath of Allegiance, wherein the King is acknowledged to be Supreme over all Persons, and in all Causes; which is founded upon the 2 Act Par. 18 Ja. 6. and is the foundation of the Act of Supremacy; which is the first Act of the 2 Par. Ch. 2.  

ACT 2.  THe Parliament 1641. had taken from the King, the Nomination of the Officers of State, Counselors and Judges; and therefore by this Act, the power of Nominating these, Is declared to be a part of the King's Royal Prerogative, which is conform to the Law of all Nations, l. unica. ff. ad l. Jul. de ambitu▪ haec Lex hodie in urbe cessat quia ad curam Principis Magistratuum creatio pertinet non ad populi favorem: By this Act also, It is Declared that our Kings hold their Royal Power over this Kingdom from God; which was expressed here, to condemn that fundamental Treason of the last age, which Taught, That the King was subject to His People, because, He Derived His Power from Them: And from that they inferred their power of Reforming; and at last, of Deposing the King.  
But lest it might have been obtruded, that though by this Act it be Declared, That the King holds His Power from God alone; Yet the holding it from God, did not exclude the Interest of the People; for all Men hold of God, whatever they hold of others: Therefore by the 5 Act of this Parliament, It is Declared, that our Kings hold their Crowns from God Almighty alone: and lest it might still have been said, That though the King holds His Power of God, yet he Derives His Power from His People; Therefore the Convention of Estates in their Letter to the King, 1678. and the Estates of Parliament, in the 2 Act 3 Par. Ch. 2. anno 1681. Acknowledge, That He Derives His Power from God alone: And though Conventions of Estates cannot make Laws; yet it may be said, that they may Declare and Acknowledge their Obedience as fully as Parliaments may.  
Observ. That these words, To hold the Crown from God, is ill expressed; For by our Law, He that Holds from Me, Holds not of Me; for a me & de me are Diametrically opposite in matters of Holding.  
THe former Rebellious Parliaments, 
ACT 3.  especially the Convention of Estates, 1643. Did Sat without a special Warrant from His Majesty; and therefore by this Act, The Power of Calling, Holding, Proroging, and Dissolving of Parliaments, is Declared to be Inherent only in His Majesty, as a part of His Royal Prerogative; and therefore the 6 Act of this Parliament, annulling in special Terms the said Convention, 1643. was unnecessary.  
I conceive that the word Proroguing here, is used for Adjournment only, though the Word in its property signifies only to Adjourn, so as to make all the Overtures passed in that Session, to be null, which distinction is unknown to, and unnecessary with us.  
The Impungers, or Contraveeners of this Act, are Declared by this Act guilty of Treason.  
BY this the former Acts against Convocations, and Leagues, 
ACT 4.  or Bonds, are Ratified, and Discharged under the pain of Sedition; and the keeping of all Assemblies and Meetings, upon pretence of preserving the King's Majesty, or for the public good, are declared unlawful, notwithstanding of these Glosses, except in the ordinary Judicatures. The Design of which Act was occasioned by, and leveled against such Meetings, as the Green Tables in anno 1637. Whereat the Nobility and Gentry did formally meet in great numbers, though their Papers did alwise begin; We the Noblemen, Gentlemen, and others occasionally met at Edinburgh.  

ACT 5.  THe former Rebellious Parliaments having raised Armies, Fortified Garrisons, and Treated with the French King, without the Authority of their own King; It is therefore declared by this Act, That the Power of making Peace and War Resides solly in His Majesty; and that to Rise, or Continue in Arms, or to make any Treaties, or Leagues with Foreign Princes, or amongst themselves, shall be Treason.  
Observ. 1. That by this Act the King is Declared to have the only power of Raising Armies, and making Garrisons, the Subjects always being free of the Provision, and Maintenance of these Forts and Armies; and therefore it was asserted, that free Quarter, except in the Case of actual Rebellion▪ was unlawful, and that even than it behoved to be warranted by a Parliament, or Convention, though it seems, that Rebellions may be so sudden, or Parliaments and Conventions so dangerous, that free Quarter may be warranted by the Kings own Authority in cases of necessity; and if any part of Scotland should rise in Rebellion, it is not imaginable that they will either give Quarter for Pay, or deserve to be paid; and so to refuse the King the Power of free Quartering, without Parliament, or Convention, in that case were to deny Him the Power of raising an Army, without which it cannot be maintained. But free Quarter is expressly Discharged by the 3 Act Par. 3 Ch. 2.  
Observ. 2. Some likewise think by this Clause, that though the King may force Towns, and adjacent Countries, to carry Baggage and Ammunition of His Soldiers, the public Good so requiring; yet He must pay them for it; since by this Act, the King is to pay for the Provisions, as well as Maintenance of the Army, and to take away Countrey-mens-horses without pay, is as great a Tax upon them, as Freequarter: But yet our Kings have still been in use, by immemorial Possession, to exact such Carriage without payment; and so the only Doubt remains, Whether this Act Innovats the former Custom? And whether the Subjects, not seeking payment, being merae facultatis, prescrives against them, jus non petendi?  
Observ. 3. It has been controverted, Whether though by this Act the King may Dispose upon all Forts, Strengths, and Garrisons, if He can thereby make any private Man's House a Garrison? that was not so Originally, it being pretended, that if this were allowed, no man can be sure of his Dwellinghouse, which is the chief part of his Property; but it cannot be denied, but that all Houses with Battlements, or turres pinnatae, as Craig observes, are inter regalia; and of old could not be Built, without the King's special Licence: and as to these, the King may Garrison them; for since He has the absolute power of making Peace and War, it were absurd to deny Him the power of Garisoning convenient places, without which the War cannot be managed.  
It having been controverted whether the Earl of Caithness might Garrison one of his Castles, without express Warrant from the Council; they found he could not, though it was alleged that he was a stranger in Caithness, and the Country was broken: For this Act of Parliament having Discharged all Garisoning of Houses, upon any pretext whatsomever, if it should be allowed upon such pretexts as this, not only would the express Letter of the Law be overturned; but all persons dissaffected might Garrison upon this pretext; whereas on the other hand, there can be no inconveniency, since the Council will allow liberty to Garrison; and if present danger do press the Heretor, he may Garrison his House for his own Defence, till he obtain that Order.  
THis Act annulling the Convention of Estates 1643. was unnecessary, 
ACT 6.  it being formerly annulled by the third Act of this Parliament.  
THis Act Declaring the League and Covenant null, 
ACT 7.  and the Discharging the Renewing thereof, under the Highest peril, seems unclear, because of the indeterminatness of the punishment, and seems unnecessary, because by the fourth Act of this Parliament, Subjects making Leagues amongst themselves, or with Foreigners, are guilty of Treason.  
THis Act does in the first part Command all Jesuits, Priest●● and Traffiquing Papists, not to say Mass, 
ACT 8.  and to remove forth of the Kingdom within a Month, under the pain of Death, whereupon it was doubted, whether within that Month, they could be punished with Death, else this Month had not only been elusory, but might have proved a snare, since they might have thought that this Month was allowed for preparing for their Departure, and so they might have appeared, and gone about their Business in order thereto.  
By the second part of this Act, Children are ordained to be taken from Parents, Tutors, or Curators, Popishly affected, that they may be bred with well affected Protestants, at the sight of His Majesty's Privy Council, which Act is renewed by a Proclamation of Council, in January 1679.  
THough the Parliament 1648. be here Ratified; yet it is thereafter abrogated by the general Act Rescissory, 
ACT 9  which is the fifteenth Act of this Parliament, that not having been resolved upon till after this was passed.  
The Parliament 1649. is by this Act absolutely Rescinded, and that without a general salvo, and though by the Act Rescissory, there is a general salvo in favours of the Rights, and private Securities passed in other Parliaments, as is clear by the last words of the 15 Act, yet there is none subjoined to this Parliament.  
That Parliament 1649. had taken from Patrons the power of presenting, they having conceived it most Antchristian, that the Minister who was to care for Souls, should be chosen by one man, and oftimes by one who would never hear him; but they reserved to the Patron the Right of Teinds, without prejudice to the present Stipend; and therefore that Act is hereby Rescinded, and Patrons restored to the power of Presentation: and though it cannot be denied, but that the people had a share in the Elections, as is clear by Saint Cyprians Epistles, yet this was when they paid them, and were themselves very judicious, and disinterested in the infancy of Christianity; and before; Patrons had by founding Churches, the interest they have now; and now the people are by an Edict cited to Declare what they know why such a man should not be chosen: And in the Reformed Churches of Germany, as Carpz. in his jus Consist. Relates, the people have vocationem; from which the Presbyterians borrowed their Word Call.  
By this Act it is Declared, That such Parsons, and Ministers, as are in present possession of Kirks belonging to Laic Patrons, shall claim no Right, nor Possession, but what they had before the making of this Act, they being otherwise sufficiently provided.  

ACT 10.  THis Act was unnecessary, because these Parliaments are taken away in the general Act Rescissory.  

ACT 11.  THis Act appoints all Officers of State to take the Oath of Allegiance, and to assert under their Hands, all the former Royal Prerogatives; but now the Council do put the same to all who are suspected; and Fine or Banish such as refuse to take it, because the Act having left to the Council to put this Oath to any, and having named no penalty, the penalty is to be understood arbitrary. But now all who are in public Trust, take the Test appointed by the 6 Act 3 Par. Ch. 2.  

ACT 12.  THis Act Confirms all Judicial proceedings, under the Usurpers, except when they were quarrelled within a year; and this Act having appointed, that within that time, the Sentences of the Usurpers might be quarrelled, without Suspension, or Reduction; and the Writ by which they were quarrelled, was called a Review, which was in effect a Reduction, and was like both in the Name and Matter, to that revisio allowed by the Civil Law.  
THe Usurpers having by the Example of our Rebellious Parliaments laid on an Excise upon Bear and Ale, 
ACTs 13 & 14  this Loyal Parliament did grant His Majesty 40000 pounds Sterling, to be uplifted yearly out of the Custom and Excise, in manner mentioned in the 14 Act: But it has been much doubted, whether it had not been better to have continued the Excise upon the Bear and Ale, than to have laid it upon the Malt; for now Brewers endeavour to take as many Pints out of the Boll of Malt, as they can, which hinders much the consumption of the Malt, by making the Drink weak; whereas if it had been laid upon the Drink, they would have endeavoured to make the Drink strong. And for which Excise, the Commissioners of the respective Shires, are liable personally, and they have their Relief off the Deficients, the Goods of which Deficients, are hereby to be poinded, without carrying them to the Mercat Cross, they being apprised at the next Paroch Church Door, which is like the privilege given to Ministers Stipends, by the 21 Act of the 3 Sess. of this Parliament.  
Though by this Act the Excise is laid upon the Retailer of Commodities; yet by the 12 Act Par. 2 Ch. 2. The Importers are declared to be liable for the same Excise.  
AFter this Parliament had Rescinded some private Parliaments, they considered that all the Parliaments from the year 1640. till the year 1650. were but Branches of one and the same Rebellion; and therefore they did annul them all by this Act, 
ACT 15:  which is called The Act Rescissory: But private parties Rights, obtained in these Parliaments are salved. In this Act it is acknowledged by the Parliament, That our Kings hold their Crowns immediately from God Almighty, which was done to exclude that Rebellious Republican, and Sectarian Principle, That our Kings derived their Power from the People; for if so, than the people might call them to an account, Depose, or Suspend them: and our very Styles, which acknowledge our Kings to be by the Grace of God, does convince us, that they are not Kings by the people; and therefore Argentorat pag. 206. Observes well, that formula illa quae est in titulis Dei gratia, utuntur illi soli qui nulli mortalium imperium suum debent vid. obs. on the 251 Act Par. 15 Ja. 6.  
THis Act allowing the Government by Synods, Presbytries, 
ACT 16.  and Sessions, is Rescinded by the 1 Act of the 2 Sess. of this Parliament.  
THis Act appointing a Solemn Aniversary Thanksgiving for His Majesty's happy Restauration, was scrupled at, 
ACT 17.  because this Act did appoint it to be set apart as a Holiday; and therefore it was thought fit by the 12 Act of the 3 Sess. Par. 2 Ch. 2. To renew it as an Anniversary Thanksgiving, leaving out the words Holiday.  
THis Act against Cursing and Beating of Parents, is fully Explained, 
ACT 20.  crim. pract. tit. Parricide.  

ACT 21.  THis Act is Explained crim. pract. tit. Blasphemy.  

ACT 22.  THis Act concerning casual Homicide, is Explained crim. pract. tit. Homicide; but it is fit to add here, that the Rubric of this Act of Parliament bearing, Act concerning the several Degrees of casual Homicide, is very ridiculous, for the degrees mentioned in the Act, are casual Homicide, Homicide in lawful Defence, and Homicide committed upon Thiefs; and no sober Lawyer can think, that either Homicide in Defence, or Homicide committed upon Thiefs, are degrees of casual Homicide.  

ACT 23.  BY this Act the whole privileges belonging to the College of Justice, that is to say, Senators, Advocats, Clerks, Writers, and remanent Members, or whereof they have been in use, or in possession at any time bygone, are expressly Ratified, and that notwithstanding of whatsoever Act, Custom, or Practice to the contrary, Vid. Act 8 Par. 2 Sess. 2 Ch. 2. Where the privilege of Immunity from Taxes, is only given to the Lords of Session.  
Upon which Act it was Debated in December 1678. Whether Advocats should not be free from the Annuity imposed by the Town of Edinburgh, since they were by this Act freed from all Impositions, and though by a special Act of this same Parliament, Ch. 2. The College of Justice was made liable to the Annuity; Yet they being free by this Act, and the other Act being but an un-printed Act, and an Act to which they were not called, their privilege could not be thereby taken away; albeit it was contended, that the being free from Annuity was no privilege, ever expressly Declared in their favours: But on the contrary, was a Debt upon them, as Hearers of the Word of God; and so the Parliament might very well by a general Law, declare this Privilege, not to prejudge the Annuities; nor was that Law concerning Annuities a special, but a general Law, binding all the people who came to live in Edinburgh; and therefore there needed no party be cited, nor was it necessary to the Essence of an Act of Parliament, that it should be printed.  

ACT 24.  BY this Act the Creditors of the Defunct are preferred to the Creditors of the appearand Heir, as to all Execution against the Defuncts Estate, they doing Diligence within three years after the Defuncts Death, which three years was found to be tempus continuum, and not utile, and that these three Years did run even contra non valentem agere, December 19 1678. Paterson contra Bruce. The reason of which Act of Parliament is, that it is just that every man's Estate should pay his own Debt, though upon the other hand it is likewise just, that in the next place, the appearand Heirs Creditors may likewise do Diligence, even against that Estate, to which their Creditor may succeed: Nor ought his voluntary lying out to prejudge them; for which cause likewise it is, that they may Charge the appearand Heir to Enter, and Comprise, or adjudge the Predecessors Estate.  
BY this Act it is ordained, 
ACT 25.  that forty days after the Sentence of Excommunication, Letters may be raised at His Majesty's Advocats instance, for Denuncing the persons Excommunicate Rebels; the Process being first revised by the Lords of the Session; but this power of the Lords of the Session, being made before the Bishops were Restored, is abrogated by the 23 Act of the 3 Sess. of this Parliament.  
BY this Act the person from whom Goods were Stolen, is to have his Goods, 
ACT 26.  or the value thereof restored to him out of the readiest of the thieves Goods, he alwise pursuing the Thief to Sentence.  
Observ. 1. Since this Act reserves to the Sheriff, or Takers of the Thief, the expense warred out by them in taking the Thief, and putting him to execution. It seems that they ought to be preferred to the Owners of the Goods, though the Act says, that he is to be paid out of the readiest.  
Observ. 2. It may be doubted whether the Justices, or the Judge ordinary should Restore? and though the Justices have no civil Jurisdiction, yet I have seen them Restore in such Cases; and this is in effect an incident Jurisdiction, ●b continentiam causae.  
Observ. 3. That it has been doubted, whether third parties buying the Goods, though in a public Mercat, are obliged to restore.  
THis Act pardoning penal Statutes, seems by a mistake, to except Usury; 
ACT 27.  for Usury is properly a Crime punishable by all Law, at all times: Whereas a penal Statute is properly a Statute, which punishes a Delinquency, that is only punishable upon some occasions by an arbitrary punishment; and therefore Acts of Grace, or general Indemnities, Discharging the Execution of penal Statutes, should no more be extended to Usury, than it should be extended to Murder, or Adultery; and Usury is by the Act of Indemnity, which is the 29 Act 3 Sess. of this Parliament, excepted from that Indemnity, amongst Murderers, Thefts, and other Crimes of that Nature, and it was excepted only in this Act, ad majorem cautelam, because the Chancellor had then the Gift of Usury.  
What are properly counted penal Statutes, may be seen Act 9 Par. 21 Ja. 6. Where amongst other Crimes, Usury is ordained to be punished, and not to be pardoned as a penal Statute; and if Usury fell under penal Statutes, it would very much encourage Usury; for men would still expect a Discharge of it, because penal Statutes are frequently Discharged: But yet the Lords in the case betwixt the Laird of Haining and Cruick, found that Usury was Discharged by the Act of Grace 1674. because of the special conception of that Act.  

ACT 28.  BY this Act the Quots of Testaments are taken from the Commissars; but upon the Restoring of Bishops, this Act is abrogated by the 1 Act and 2 Sess. of this Parliament.  

ACT 29.  THis Act is formerly Explained Act 77 Par. 13 & Act 10 Par. 18 Ja. 6.  

ACT 30.  THis Act is formerly Explained in the 14 Act Par. 1 Ch. 1.  

ACT 31.  BY this Act all Comprisings are to be allowed within sixty days after the date thereof, with Certification, that if they be not allowed, and Recorded within that space, a posterior Comprising first Recorded, shall be preferred thereto; and upon the 8 of June 1665. The Lords upon a Supplication, ordained a Comprising to be allowed, though the person against whom the Comprising was led, was dead, and the sixty days were expired; and found that notwithstanding thereof, it should be preferred to a Comprising, whereof the allowance was Registrated after its Registration.  
Observ. 2. That by this Act a Comprysing is not declared thursdays, for not being allowed, and so was not excluded by a posterior apprising, first allowed; but both were brought in pari passu; which last part of the Decision may seem strange, since it is expressly declared by this Act, that the not allowance shall be with Certification, that a posterior Comprising, first allowed, shall be preferred according to the date of the allowance, November 29. 1672. Maxton contra Cunninghame; and so they could not come in pari passu. But the reason of this Decision must be, that by the posterior Act 62. of this same Parliament, all comprisings led within year and day of others, are ordained to be brought in pari passu: and these Comprisings have been led within year and day, though the Decision mention not this. And this I find decided, July 17. 1668. Stuart contra Murray.  
Observ. 3. That if the Appryser has obtained Infeftment without allowance, he will be preferred; because (as I think) his Infeftment being Registrated in that case, supplies the not Registration of his allowance, and Certiorats singular Successors sufficiently.  
Observ. 4 This Act Narrats, that it was ordained formerly by Act of Secret Council, that the whole Comprisings, and not a Breviat, should be Registrated: Which not being authorised by any Law, or Act of Parliament, is therefore Discharged; from which it appears, that the Secret Council use not only to make Acts relating to Government, or to regular prices of Writs, as appears by the 19 Act 23 Par. Ja. 6. Or to discharge Bakers, and Candlemakers to keep their Broom-stacks, or Melting-houses within Towns, as in the 29 Act 23 Par. Ja. 6. But even to make Acts relating to Registration, and Competition of Writs; which though the Parliament does here openly condemn; yet tacitly this Act declares their Act was no Law; and they could less have made such an Act, than the Lords could have made an Act of Sederunt, ordaining Seasins within Burgh to be Registrated, which they found only the Parliament could do; and it is observable also, that this Act of Council did therefore soon run in Desuetude; and the Parliament confirms the contrary Custom.  
Observ. 5. This Act Narrats that by a Custom, allowances of apprisings did contain, and express the Names, and Designations of the Apprysers, the Names of the Defenders, (whereas it should have said Debtors, though the Debtor be a Defender in the Comprysing, which is a Decreet) the Debts for which the Comprising is Deduced, the Messengers, and the Clerks names, the Date of the Executions, the Witnesses names thereto, and the Superiors names; which Custom being authorised by this Act, it may be doubted, if the omitting any of these particulars in the Registrated allowance, would annul the same, since the Act does not subjoin an irritancy.  
THe difference concerning heritable and Movable Bonds, 
ACT 32.  is fully Explained in my Institut. Part 2. tit. 2.  
BY this Act, these who Mary themselves Clandestinly, 
ACT 34.  or inorderly, are to be imprisoned for three Months, and beside to pay, each Nobleman a Thousand Pounds; each Baron, and Landed Gentleman, a Thousand Marks; each Gentleman, and Burges, five hundred Pounds; each other person, an hundred marks.  
Observ. 1. The want of the Parents consent, or of the consent of others having interest, seems by the Narrative, to infer the Clandestinness of the Marriage: But yet by our practic, Children Marrying without the consent of their Parents, if they be of age, and the Marriage otherwise regular, they are not punishable▪ wherein we seem to agree rather with the Counsel of Trent▪ than either with the Law of God, Exod. 22. and 17. Numb. 30▪ Deut. 7.3. Or the Civil Law, Institut. de nuptiis & l. 2. ff. de Ritu. nupt.  
Observ. 2. That it may be doubted, whether since this Act appoints no punishment to Women; if a Noble-woman being an Heretrix, Marry a Gentleman Disorderly, she may be punished as a Noble-woman, or he only as a Gentleman; and I think she should be punished as a Noble-woman, having precedency as such.  
Observ. 3. That it has been doubted, if an Expectant having power to Preach, and being appointed a Presbyter, but having no settled Kirk, and Marrying persons, the Marriage can be punished: Or if such as Marry by a lawful Minister of another Paroch, without Warrant, either from the Bishop, or the Minister of their own Paroch, may be punished by this Act.  
Observ. 4. By the 9 Act Sess. 3 Par. 2. Ch. 2. Such as enter into these Disorderly Marriages, lose their jus mariti, or jus relictae, by and attour the penalties here expressed.  
Observ. 5. That the Marrying in England, or Ireland, without proclamation of Bonds in Scotland, and against the Order observed in this Church, infers the former Fines; but the Marrying without proclamation of Bonds, is not per se sufficient; and therefore if there be a Dispensation from the Bishop, Quaer. if the Marriage is not Clandestine, and it seems it is not, for the Bishop may be misinformed, as if the Woman wanted parents: And by the Narrative of this Act, the want of the parents consent is made an impediment, as well as the having granted a prior promise to another; and therefore, as the Bishops Warrant should not defend in the one case, so neither should it in the other; but it is still peri●ulo petentis, else Bishops should innocently become the Instruments of Robbing us of our Children, and Estates, and of taking them away in such manner, as that parents can neither see their Daughters provided to competent Jointures by the Husband, nor the Husbands who Mary them, sufficiently provided by the Father in Law. Quaer. 2. Whether is the consent of the Mother necessary when the Father is Dead; and I conceive it is, especially when she is entrusted by the Father, and the Child stays with her; for though the Daughter be not in potestate materna; yet she is a Parent; and this Act requires the consent of Parents; and the Instituts tell us, that naturalis & civilis ratio requirit consensum parentum: nor can it be denied, but the Mother has an equal natural Relation; and by this Interest, Law incourages, and rewards the Mother's pains. Quaer. 3. What if the parents refuse reasonable offers, and yet the Child is Marriageable. To which it is answered, That the consent should be first asked, and why they refuse, that the Judge may, when the parent thereafter complains, consider if the parent was culpable in refusing his consent. Quaer. 4. If the being Married by their own Minister, without proclamation, or Dispensation from the Bishop be sufficient, and though the Minister have a Warrant from the Bishop; Yet by Act of Synod, he is discharged to Marry in a private House, except the Warrant dispense therewith expressly.  
THis Act shall be Explained in my Observations on the 21 Act Par. 3 Ch. 2. 
ACT 35.   
BY this Act it is ordained, 
ACT 36.  that none shall have Right to any Benefices, till they take the Oath of Allegiance; and if the patron omits this, not only is the presentation to be null; but the Right of Patronage as to that Vacancy, belongs to the King.  
THis Act is formerly Explained in the 8 Act Par. 22 Ja. 6. 
ACT 38.   
BY this Act, 
ACT 39  His Majesty and Parliament having Erected Fishing Companies, Do declare, that Salt, Cordage, Hemp, etc. imported for the Trade of Fishing, shall be free of any Custom or Imposition: But yet by the 12 Act of the 2 Par. Ch. 2. The Importers of Foreign Salt, are to give Security for payment of the Excise, whether the Salt be employed for salting of Fishes, or not; but there is allowance to be given to the Exporters, for what shall be proved to have been employed upon Fishing.  
It is observable likewise from this Act, that His Majesty by His Sovereign Authority, and prerogative Royal, without speaking any thing of the consent of Parliament, in this Clause, D●clares that the Ships, and Furniture employed in Fishing, shall not be arrestable by Creditors, nor the persons pursued before any Judicature: and it may be doubted how this is consistent with the property of the Subject? Or whether this would Defend against Criminal Pursuits. The word attatchments here expressed, properly includes Criminal actions, sed nulla excusatio prodest adversus pracepta ei qui cum leges invocat adversus eas committit l. auxilium, ff. de minor in ●in: and though it may be answered to the other Doubt, that the Parliament consented to this lessening of property; Yet it is clear, that the Prerogative, and not their Consent, is only mentioned, except we construct their not opposing it to infer a consent: and it may be rather urged, that the Parliament has acknowledged, that this is the King's Prerogative; But if this be, the King may Discharge Judges to proceed in any civil action.  
THis Act encouraging Manufactories, 
ACT 40.  by Discharging the Custom, or Excise, due upon the Materials, to be therein employed, is much lessened by an Act of Exchequer, whereby it is Declared, that these Materials are only to be free, which the Masters of the Manufactory bring home upon their own Risk; because this Act, and the 48 Act, in favours of Sope-work, does say, That shall be imported for the use of Manufactories; and another Decision of Exchequer, whereby it is Declared, that these are only to be accounted privileged Manufactories, where the species of the thing Manufactored is altered; and therefore it was pretended that the Suggar works were no Manufactory, because they only Refine Suggar that is brought in.  
It has been likewise Debated, whether Materials Imported for Manufactories, are by this Act free from paying Custom, or Excise; since the Act only says, That Oil, Dying Stuffs, Pottashes, or any other Materials usual for Manufactories, shall be free of Custom, Excise, and other public Deuce, and that all clothes, Stuffs, Stockings, and other Commodities to be Exported by them, shall be free of Custom, and Excise for nineteen years, must be subjoined, both to the Export and Import, both these being in one Sentence, and not divided by a punctum, but by a Semi colon; By which we are to observe, that not only the right Wording, but the right Pointing of Acts of Parliament are to be observed: But in my opinion, the Materials are ever to be free; and the Export is only to be free for nineteen years; which is clear, not only from the wording of this Act, but likewise from the 48 Act of this same Parliament.  

ACT 41.  BY this Act any person enclosing his Ground at the sight of the Sheriffs, Stewarts, etc. may cast about the Highway, two hundred els; and where Inclosurs fall to be upon the Borders of any persons Inheritance, the next adjacent Heretor is to be at equal pains in Building, Ditching, and Planting that Dike, which divideth their Inheritance; which last Clause was found to be only conceived in favours of those who had required the Neighbouring Heretor, because he might have employed his own Servants, or Materials, but yet the Lords, in the case of Garletoun against George Seaton, February 1679. found that if the Neighbouring Heretor was not required, they would abate to him in the Modification, what he might have saved by using his own Servants and Materials, by the 17 Act Par. 2 Ch. 2. It is added, That the Sheriffs, and Justices of Peace, may force the Neighbouring Heretor to sell as much of his Lands as may cause the Dike, or Ditch to run upon even Ground, or as may be capable of a Dike▪ or Ditch, where the Builders own Ground is incapable of either Dike, or Ditch. Bacon's History Hen. 7. observes, that that King restricted the frequency of Enclosures, because much Grass could be managed by a few Herdsmen, which occasioned a great Decay of Infantry, Towns, Taxes, Tithes, vid. pag. 73. of that History.  

ACT 46.  BY this Act broken Copper, and Brass, are discharged to be Exported; and the Reason truly is, because it hinders the Manufactory of making things of Brass, or Copper within the Kingdom; but yet because there was so much allowed to be taken for broken Brass and Copper, Exported by the Book of Rates; which seemed to imply, that Exporting was allowed, and that this Act had not been in observance; therefore the Council Discharged the Confiscation quoad bygones, preceding 1684. But Discharged Exportation for the future. And it must be noticed, that Custom is imposed by the Books of Rates upon many things that cannot be Exported.  
THis Act Discharging Tradesmen to Import made Work, 
ACT 47.  and declaring the one half to ●elong to His Majesty, is not so well observed as in reason it ought to be, since it makes them lazy in improving the Manufactorable Commodities of our own Nation▪ But it may be doubted, whether this Act does not also Discharge the importation of all such made Work, by Merchants as well as Tradesmen, since this discourages Manufactories more than the other; for it is less probable they who can make such Work, will bring it home; and why should ill Work be Confiscated, when made by our own Tradesmen? whilst any ill Work may be brought from abroad; and the words of the Act being the Parliament ●●hibits and Discharges all Tradesmen to Import made Work, or any such Ware brought home by Merchants The prohibition may by the particle or, be extended to made Work, brought home by Merchants; To which nothing can be answered, but that the Rubric bears, Act Discharging Tradesmen to import; This selling was discharged formerly to Craftsmen only, Ja. 2. Par. 14. Act 67. Ja. 3. Par. 2. Act 12. and Par. 14. Act 107. But it is alleged, that some Work cannot be so well made; and that our own Tradesmen would extortion us, if we were not in a capacity to over-awe them by bringing home made Work: and yet to encourage our own Workmen, there is double Custom laid upon all Foreign made Work by the Book of Rates, and ten per cent by a late Proclamation, which being joined with the Sea-risk that those run who bring home made Work, and the Exchange paid for the price of it, is a sufficient encouragement to our own Tradesmen; who, because they may live cheaper, may likewise work cheaper than those abroad, even beside these other Encouragements.  
THis Act in favours of Sope-work, seems needless, 
ACT 48.  because it was comprehended under the general Act concerning Manufactories, being the 40 Act of this Parliament; but probably it has been thought necessary for clearing the time, for which the privilege of Manufactories was to endure, as has been observed upon that Act.  
THough by this Act it be Declared, that upon the bringing down the annualrent to six of the hundred; 
ACT 49.  that six is declared to be free of all Retention, or other public Burdens; Yet subsequent Parliaments have Burdened, even the annualrents with Retention, and otherwise, expressly contrary to this Act, upon pretext that the Impositions were voluntar offers, and not formally Impositions.  
Nota. It may be doubted, if the King's Officers may not lawfully engage for more than six per cent, to get Money for public use.  

ACT 51.  BY this Act it is Declared, that all sums whereupon no Infeftments have followed, may be arrested, though they be heritable otherwise of their own Nature; and because regulariter heritable sums are not arrestable, therefore this Dispensation was necessary.  
Albeit this Act bear only, that sums whereupon no Infeftments have followed, be arrestable, and determines not, if arrestments may be used at his instance, to whom such sums are due; Yet a paritate rationis, this may follow.  

ACT 52.  THis Act is formerly Explained in the Act 7 Par. 1 Ja. 6.  

ACT 53.  THis Act is only a Ratification of the 10 Act of the 1 Par. of Ch. 1. Save only that it is here declared, That notwithstanding of this Act, any who have gotten, or shall get any new Infeftment of Superiority of Kirk-lands, the same shall stand good, as to such Vassals who have given their consent to the said Right of Superiority▪ In regard that such a consent, as to His Majesty, is of the Nature of a Resignation of their property, in favours of the said Superior, to be holden of the King; But prejudice nevertheless to His Majesty, of His Highness Right of Reversion, of the Feu-ferm-duties, and Casualties, conform to the foresaid Act of Parliament 1633. The design of which Clause was, to secure such Lords of Erection, as had got Bonds from their Vassals, holding Kirk-lands of them, to continue their Vassals, and not to hold of the King, notwithstanding of the Act of Parliament 1633. Declaring the King to be the Superior of all Kirk-lands: and albeit the Lords did not think that the single taking of an Infeftment from a Lord of Erection, did infer the consent mentioned in this Act; after giving of which consent, the Vassal could not return to be the King's Vassal; Yet upon the 28. of July 1669. in a case betwixt the Duke of Hamilton and Weir of Blackwood. The Lords found, that such a consent as this might be inferred by presumptions, showing that the Vassal designed to oblige himself to hold of the Lord of Erection, and not of the King; and in that case they found, that Blackwoods' Father having granted a Bond, that so soon as the Duke should obtain the Superiority, his Son should become his Vassal; and though the Duke had not then obtained it, yet he has since; the Lands being lately dissolved from the Crown; and though the Father was but a Tutor, yet he was the person who was instrumental to settle his Son in the Right; and the rest of the Vassals of that Abbacy, did take their Lands expressly, holden of the Duke only: But in my Opinion, no consent can be founded upon by this Clause of the Act of Parliament, except it be a clear and express consent, to hold only of the Lords of Erection, and not of the King, it being so much the Interest, both of King and People, that the Subjects should hold of the King; and the Parliament, 1633. having so clearly introduced in the favours of Vassals of Erected Church-lands, that they may hold of the King, it were hard to take that benefit from them without their express consent.  
FOr understanding this Act, it is fit to know, 
ACT 54.  that because Ti●●lars of Prebendaries, Chaplanries, and Alterages cannot be Infest, and that there is nothing standing in any Register, to show who is Titular; therefore singular Successors who are Vassals, could not know by whom to enter; to supply which, this Act provides that the Vassals of the said's Provestries, Chaplanries, and Alterages, and others of that nature, may be Infeft by the Laic Patrons, holding immediately of the King; because it is easy to discover by the Registers, who is Laic Patron of the Benefice, since it passes by Infeftment, but yet the Laic Patron is to have no advantage; and so the Liferent-escheat will not fall to him as Superior, but will belong to the Titular, who is true Superior; nor can the Laic Patron pursue Reduction: But yet it seems that since the Vassal did Enter by him, that therefore he is bound, both to produce to him, and that he will have right to the Emoluments of the Superiority, except the Vassal can show who is the true Superior.  
Nota. That when the Patron presents in such Cases, he needs not the consent of the Chapter, or Convent of the said's Prebendaries; and the Provost and Bailies are Declared the only undoubted Superiors, where such Benefices lie within their Towns, they having formerly been Patrons of these Chaplanries, which ablativi absolute positi seem to import a condition, and so they must prove that they were formerly Patrons.  
ALbeit by this Act it be appointed, 
ACT 55.  that there shall be a Cocquet for every Ship, and that there shall be forty shilling paid for it; Yet it was alleged that a general Cocquet, for a Ship, was not sufficient; but that every Merchant should have a special Cocquet, containing specially his Goods, and enumerating particularly all the kinds of these Goods; Because, First; The design of Cocquets was, to know whether the Goods belonged to Free-Traders; which could not be done, if the Goods and Merchants Names were not condescended on particularly; Nor could it be known, if His Majesty's Dues were paid for the Goods, for which the Cocquets were granted. 2. It were unjust that a great Ship with Rich Wares should pay no more than a small one with courser Goods. 3. By the Customs of England, and other Countries, there were for these Reasons, special Cocquets given for proportional Deuce. 4. By the 255, 256, & 257 Acts of the 15 Par Ja. 6. The Cocquets are to contain the particular quantities of the Goods; vid. observ. on these Acts.  

ACT 56.  THis Act is Explained in the 11 Act Par. 18 Ja. 6.  

ACT 57  THis Act Discharges the Custom of two and a half per cent, and all raising of His Majesty's Customs, directly, or indirectly, without consent of Parliament: and so though by the 27 Act of the 3 Sess. of this Parliament, asserting His Majesty's Royal Prerogative in the Ordering of Trade with Foreigners. It seems that His Majesty may lay what Restraints and Impositions He pleases upon Foreign Imported Commodities, and as He pleases; yet it seems the Customs by this Act cannot be raised: for though that Act be posteriour, yet this is special, and is not particularly abrogated; albeit by that Act, all Acts and Statutes contrary to that Act, are abrogated. By this Act likewise, His Majesty Discharges the taking Masters, Merchants, and Mariners Oaths in the matters of Customs; but since their Oaths are taken in the matters of Excise, this privilege signifies nothing, Vide Observations on the Act 12 Par. 2. Ch. 2.  
THis Act is Explained in the Observations upon the 18 Act Par. 1. Ch. 1. 
ACT 59   
THis Act allows any of His Majesty's ordinary Officers, to whose Charge the same belongs to Docquet signatures; 
ACT 60.  and by ordinary Officers, I think are only meant, Officers of State; and this was formerly Established by the 20 Act Par. 10. Ja. 6. But by this Act is added, That these who do Docquet, shall send a double of the Docquet to the Secretary to be Registrated; But yet the Deed is not annulled, though this be omitted: and therefore the Deed I think would subsist; but the Omitters would be punished. The Reason why a double is to be Registrated, is, because by this His Majesty may know what is formerly granted, which will prevent double Gifts of the same thing.  

ACT 61.  THis Act is formerly Explained in the former Commissions for Plantation of Kirks, viz. Ja. 6 P. 22 Act 3 Ch. 1 P. 1 Acts 8 & 19  

ACT 62.  THis Act for the most part is but Temporary, and was made to give some ease to the poor Debtor, whose Lands had been so wasted and burdened in the late Rebellion, that he could neither pay Annualrent, nor Redeem Comprisings, or Wodsets, as formerly, being founded upon the same Reason, by which the novae tabula were Introduced in Rome by Julius Caesar, after the Civil Wars betwixt Pompey and him: But the chief things observable in it, are first, That the Legal Reversion of all Comprisings to be led, or that were led since January 1652. whereof the Legals are Expired, and all Comprisings whereof the Legals were not expired before that Month, shall endure for ten years; and though it might have been pretended, that▪ this Act does not prorogat the Reversion, but only makes the Lands to be Redeemable, and so the Rents of the last three years above the seven, which was the ordinary Legal, was not to be Restored, but that the Compriser had Right to them, as fructus bona fide percepti & consumpti: Yet the Lords found that the Compriser was countable for his Intromission, even for these three years, since in effect these three years are added to the Reversion, and so the Compryser is liable for these three years, as he would have been for the other seven, January 20. 1666. Clapperton contra Torsonce.  
Albeit by our former Law, the Compriser could have possessed the whole ●ents of the Comprised Lands during the Legal; Yet in respect the Rents do often exceed very far the Annualrents; Therefore by this Law, allowance is given to the Lords of Session, to Restrict the Compriser to such part of the Land as will pay him the annualrent of his Sum and Expense: The Debtor from whom the Lands were Comprised, Ratifying the Apprysers' Possession of the rest; but it is still to be remembered, that after the Legal is expired, the Compryser has undoubted Right, and cannot be limited.  
Upon this Clause of the Act, the Lords upon the 27 of June 1662. Restricted Wilson who had Comprised Sir William Murays Estate, to meddle with any part of the Estate Comprysed that he pleased, esse●ring to eight per cent, he counting for the superplus above this annualrent, and for the public burdens; but thereafter in February 1684. in a case betwixt Wilson and Sir Alexander Hume. It was contended, that this Clause was a part of the Temporary Regulation passed in favours only of such Debtors as had taken the benefit of this Act, by payment of their annualrents, and was only ill placed here amongst the Clauses, relating in general to comprisings, for it was against the whole current of our Laws, that during the Legal, the Creditor who was forced to want his Money,, should be forced during the long legal of ten years, to accept of naked annualrent; especially seeing ofttimes they got Land at last, that they could not, nor cared not for the Possession of it; Nor would this ever spur, and excite Creditors to pay the sums Comprysed for, and this was a very universal prejudice; most part of Rights being now founded on comprisings; and the Practic being single, and not upon Debate, was not to be respected. To which it was answered, That the Clause was opponed, and it was dangerous to allege that Clauses were Transplaced by mistake; nor could any thing Gloss a Law better than a Decision past so Recently, after the Act made: at the making of which Decision, many eminent persons were present who had been the very Penners of the Act, and the Restriction was most reasonable; for since great Estates were to be carried away by Comprisings for small sums, it waste just that till the Comprising expired, the poor Debtor should be favoured: Nor was the Creditor a loser, since a Comprysing being a legal Pledge only for his Money, he got the Annualrent duly paid him, and a Ratification of his Possession, even during the Legal: and if his Money was not paid cum omni causa, with annualrent, for his very Expense he got the whole Land, though the sum were never so small; upon which Debate, the Lord● adhered to the former Decision, though it seems very strange to the best Lawyers. The Lords likewise found upon the 28 of July, 1671. That this Power granted to them, was only in favours of the Debtor, from whom the Lands were Comprysed, and could not be extended in favours of posteriour Comprysers, who could not upon this Clause crave, that the first Compryser should be restricted to his Annualrent; for the privilege is granted to the first Compryser in contemplation of his being obliged to Ratify: Nor are the second Comprysers prejudged by the first Comprysers' Possession, since it will extinguish his Comprysing pro tanto, and make way for them.  
By this Act also, all comprisings led since the first of January 1652. before the first effectual Compryser, or after, but within year and day of the same, shall come in pari passu, as if one Comprysing had been led for all the Sums: Upon which Clause it is observable, 1. That comprisings led since 1652. come not in with comprisings led before that year, though within year and day thereof, December 12. 1666. Hume contra Hume.  
For clearing this and all other Acts of Parliament, which appoint Diligences to be done within year and day; It is fit to know that the year is the time designed by these Acts, and the day is adjected only ad majorem evidentiam; and therefore dies ille inceptus pro completo habetur February 25 1680. Weddel contra Salmond; Where the Husband was found to have the Tocher▪ though the Wife lived not the entire day following the year, but died in the morning of that adjected day.  
Observ. 2. That the first effectual Comprysing is interpreted to be a Decreet of apprising, whereupon Infeftment follows; and therefore if the second Comprysing be led within year and day, after Infeftment was taken upon the first, it will not come in pari passu with it, except it be within year and day of the Decreet of apprising, for the first Comprysing was expired, and so the next Creditor could Comprise nothing, so that his Comprising could not come in pari passu; Which was so decided. Albeit it was alleged, that by this Act, all comprisings led within year and day, are fictione juris, to be repute as if one and the same Comprysing had been led for all the sums contained in all these comprisings, quo casu, one of the Creditors Rights could not have expired in prejudice of another, and in effect this year is a new Prorogation of the Legal quoad that Con-creditor who has led his Comprysing within year and day of the other, July 4. 1671. Laird of Balsour contra Dowglas.  
Upon this Clause it was also Debated very subtly, whether an Infeftment of Annualrent having interveened betwixt a prior Comprysing, and other posterior apprisings, could be preferred to the posterior apprisings; for all these comprisings having been led within year and day; It was alleged that by this Statute, they behoved to come in pari passu, as if one Comprysing had been led for all; and therefore since the first was preferable to the Infeftment of Annualrent, so should the rest, though posterior to it. But to this it being answered, that the meaning of the Act was, That comprisings led within year and day, should come in pari passu, only in competition with one another; but that Infeftments of Annualrents, or other Rights could not be postponed to posterior Rights, for which Annualrents, if the Creditor had Comprised, he had been preferred. The Lords brought them all in pari passu; the matter being dubious, and the doubt arising on the unclearness of a new Statute, February 6. 1673 Brown of Colstoun contra Nicolas; which shows what 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Lords have, and what is done for clearing of new Statutes.  
Observ. 3. That this Computation is only to be made with respect to the first effectual Comprising; and therefore though it be extinguished by Discharge, or Intromission; Yet the third Compriser will not, upon this Act of Parliament, come in pari passu with the second, upon pretence that the second becomes first, by extinguishing the first Comprysing, Decemb. 13. 1672. Street contra the Earl of Northesk.  
Obser. 4. That this Act of Parliament being Correctory of a former Law, was found not to be drawn back, so as to make such as intrometted prior to that Act, obliged to Communicate their Intromissions before the Act; though their comprisings were led within year and day, the Intrometter having been bona fide possessor, January 7. 1665. Grahame contra Brown. But yet some think▪ that after the Act, 〈◊〉 first Compryser will be liable for his Intromissions, and to Communicate them with a second Compryser, Comprysing within year and day from the very date of the second Comprysing, and not from the Date of a Citation only; for though it may be alleged, that before a Citation, a second Compryser is bona fide possessor, and is not obliged to know that there was a second Comprising; or whether he was paid aliunde: Yet to this it may be answered, that by this Act the first Compryser is to count, as if the same Comprysing had been led for both the Debts, quo casu Intromissions would have been Communicated even before Citation; and by the foresaid Decision, The Lords found that bona fides Defended only, as to Intromissions prior to the Act; Ergo it did not Defend, as to Intromissions subsequent to the Act.  
Observ. 5. That this Clause of the Act is somewhat innovated by the 22 Act Sess. 3. of this Parliament, whereby in favours of those posterior Comprisers, who bought in the first Comprising, to prevent its expiration; It is Declared, That the first Comprising so standing in their person, shall not be brought in pari passu with other comprisings, though led within year and day: But it being doubted, whether that Act of Parliament should only secure such as were necessitated to buy in the first Comprysing, Because that seems to be the Design of the Legislator: Yet the Lords extended it to all Comprisings so bought in, the Statutory words being general, December 9 1664. Veatch contra Williamson.  
Observ. 6. That since posterior Comprysers were brought in pari passu with the first Compryser; It was justly ordered by this Act, That the first Compryser should be paid of his Expenses by the posterior Comprysers; which was found to extend to all the Expenses laid out by the first Compryser, who is to contribute no part thereof himself, that being all he has in recompense of their coming in pari passu. But quaritur, whether if one of these Comprysers were only pursuing to come in, if he would be obliged to pay all the Expense, or pro rata off his sums? And I think he would be obliged to pay all, reserving his Relief.  
It is likewise doubted, whether one of many Comprysers, coming so in, will have Right to any, more than proportionally to his sums, all the rest remaining with the first Compryser, till the rest of the Comprysers seek to come in; or if that Compryser will force the first compryser to divide with him, according to the proportion of their two sums only, without respect to the other Comprysers, till they come in.  
Observ. 7. That comprisings led for real Debts, and debita fundi, remain as formerly; so that comprisings led within year and day, come not in pari passu with comprisings led upon these real Debts, such as Ground-annuals, Annualrents due upon Infeftments, or sums whereupon Inhibition was raised; for clearing whereof, it is fit to know that debita fundi, are either when Lands are burdened by an express Act of Parliament, which makes the burden real, and to affect the Ground against singular Successors: Or 2. What is paid to a Superior as a part of his Reddendo, are likewise debita fundi; and do in like manner affect the Land.  
Observ. 8. That though Adjudications and comprisings, have generally the same privileges: Yet where Adjudications are not led for liquid sums, but are granted by the Lords, for completing Dispositions and Rights made by the Party, where the Granter refuses to complete the Right himself; in that case, such Adjudications come not in pari passu upon this Clause, July 16 1675. Campbel of Riddoch contra Stuart. December 2. 1676. Lady Frazer contra Creditors of the Lord Frazer.  
BY this Act also it is Declared, That if the appearand Heir, or any person to his behoof, shall buy in any expired comprisings, the said comprisings shall be Redeemable by posterior Comprisers from the appearand Heir, or his Confident, for payment of the true sums paid out by them, and that within ten years after the said Right was acquired.  
Observ. 1. That though this be a correctory Law, and so ought not to be extended; Yet it is so favourable, that the Lords extended the same to Rights bought in by Eldest Sons, whilst their Father lives, though the eldest Son cannot be properly called in that case an appearand Heir, since an appearand Heir is only he who can succeed in haereditatem jacen●em; but the Lords would not extend it to the Right of an Apprising, bought by the Husband, where his Wife was appearand Heir: For though the Lords found this reasonable, yet they found the Act to be stricti juris; and so would not extend it to this Case, except it could be alleged that the sums were truly paid for the Wife's behoof, and the Lands provided to her Heirs: and some doubt, whether Comprisings bought in by the Tutors and Curators of appearand Heirs, be Redeemable upon this Act: and since their Pupils may oblige them to Dispone the saids Rights to them, though the Comprisings were bought in, in the Tutors and Curators own name, if they had as much of the Pupils means in their hands. It seems that by the same Reason, the Pupils Creditors who Comprise omne jus, that was standing in their person, should have the same privilege.  
Observ. 2. Though this Clause runs only in favours of Apprysers, from which it may seem, that they are only allowed to Redeem; Yet the Lords Decided January 9 1677. Hay contra Gregory; That a Creditor having an Infeftment of Annualrent, might Redeem from a Compryser who excluded him; and it seems by that Decision, that any Creditor may have this Benefit as well as Comprisers, since they may Comprise: Nor are the strict words of the Act to be considered; for else Adjudgers could not Redeem, since they are not named in the Act.  
By this Act also, not only the Apprising is Redeemable, but even Bonds granted for the Sum thereafter Comprised for, are null, if the Apprising be satisfied as said is, so that appearand Heirs cannot make use of the Bond, or Inhibition upon it, and though a Disposition was bought in by the appearand Heir, before the Act of Parliament; yet if the Infeftment was taken after the Act, the Comprising was found Redeemable by the Act; for it is the Infestment, and not the Disposition, which gives the Right; because if a third party had been first Infest, he had been preferred to the appearand Heir, notwithstanding of this Disposition: July 21. 1671. Maxwel contra Maxwel. In which case it was also found, that though the Act bears, that expired Comprisings bought in by the appearand Heir, should be redeemable; Yet if the appearand Heir buy in a Comprising in cursu, the same will be Redeemable if it expire whilst he had Right to it; so that upon the whole matter, it is observable, that even Correctory Laws with us, are to be extended in favourable cases, so far as to make them answer the Design of the Legislator, which is to help the ill that was to be Corrected.  
Observ. 3. That this Privilege is allowed to the second Compriser, not only by way of Order of Redemption, but even by raising an ordinary Action; so that if he raise that Action within ten years, the Lords will find the same sufficient; providing he has raised a Declarator, concluding Compt and Reckoning within the ten years, which the Lords will sustain by way of Reply, being proponed upon incidenter in the ordinary action for payment, June 26. 1677. Kincaid contra Laird Abergeldie.  
Observ. 4. That these ten years run from the Infeftment taken by the appearand Heir, or some other public Deed, as Decreets, etc. Done upon the Right so bought in, else the appearand Heir might keep his Rights latent for ten years, and consequently the Creditors could not Redeem, because they could not know them.  
It is fit to know that by our Law, Wodsets are either proper, or improper. A proper Wodset is, where Lands being impignorated for a sum, the Rents of the Land are accepted in satisfaction of the Annualrents of the Money, and that without any Restriction upon either side: and as to these Wodsets, it is by this Act ordained, that the Wodsetter shall be obliged upon offer of sufficient surety by the Lender, either to quite his Possession, or Restrict himself in his Possession to his Annualrent, counting for the superplus: But this Act innovating the private Paction of Parties, was found only to oblige the Wodsetter, to be countable from the Date of the Offer of Surety, and not from the Date of the Act of Parliament, February 21. 1666 Lord Borthwick contra his Wodsetters. But in this Computation the Wodsetter is to get Defalcation of what he hath depursed upon Reparations, or hath lost by Quartering, or any other manner of way. Improper Wodsets are these, whereby it is expressly Declared, That the Wodsetter shall not be liable to any hazard of the Fruits, Tenants, Wars, or Troubles; so that the Wodsetter is to have Re-payment of these, by and attour the Rents of the Lands, which are Declared to be Usurary in time coming, and the Wodsetter in all such Wodsets taken since the year 1649. is obliged to count for the superplus, more than pays his Annualrent, and to impute the same pro tanto, in payment of his principal Sum.  
NOta. This Act of Adjournment, 
ACT 64.  is the first that I find in all the present Impression of the Acts of Parliament; For Parliaments were of old Dissolved, but now they are ordinarily Adjourned, and the Act of Adjournment is neither touched with the Sceptre, because it is an Act of the Kings, and He needs not touch His own Acts; nor is it Read in Parliament; because by the very Adjournment the Parliament is dissolved, and it being no more a Judicature, nothing can be Read in it.  
But by the 12 Par. Ja. 1. By the black Acts, I find that de mandato domini Regis Parliamentum suit continuatum usque ad sestum beati Joannis Babtistae sub praemonitione, 15. dierum: Whereas though our Adjournments bear now no days, upon which Premonition is to be made; yet when the King Adjourns Parliaments by Proclamations, beyond the days to which it was Adjourned by Act of Parliament, He uses to Adjourn them upon the Premonition of forty days, and fifteen was too short.  
It was doubted, whether if the Day to which the Parliament was Adjourned by Proclamation was elapsed, a new Parliament behoved to be called, Or if the current Parliament ought to be Adjourned by a new Proclamation, notwithstanding the Day was elapsed, and it was found that it might be Adjourned; since the power of Calling and Dissolving Parliaments is the King's Prerogative, and a Letter to this purpose from the King, is Registrated in the Council Books in July 1683.   

King CHARLES' 2. Parliament 1. Session 2.  
EPiscopacy having been Restored in anno 1606. 
ACT 1.  Bishops were by the Rebellious Parliaments abolished; and therefore are by this Act Restored to their undoubted Privilege in Parliament (that is to say, to be a third Estate) their Function, Dignities, and Estates; but before this Act of Parliament, the Secret Council by their Act in June 1662. Discharged any Person to meddle with their Estates, or Revenues, in Obedience to a Letter, directed by His Majesty, which gave the first rise, both to that Act of Council, and this Act of Parliament.  
By the first Act Par. 12. Ja. 6. King James had permitted the Church to be Governed by General-assemblies, Synods, and Presbytries; Which Act was not expressly abrogated by the 2 Act Par. 18. Ja. 6. and therefore it is by this Act expressly abrogated; They are also Restored to their Commissariots, and Quots of Testaments; but the present Commissars Rights are reserved; and albeit they be Restored to the Superiorities; Yet Vassals having Entered by, or having paid to the Superiors for the Interval, are secured.  

ACT 2.  BY this Act, taking up Arms (though in Defence of Religion) is Declared Treason; and conform to this Clause, all going to Field-conventicles in Arms, was Declared Treasonable; though it was alleged that this was not a Rising in Arms, since every man went without knowing of his Neighbour; for the Council and Justice's thought, that at this rate, a multitude of Armed men might easily assemble; and the Levying War, or taking up Arms, being impersonally Discharged, it reaches every single man; and though there were only one single man in Arms, yet he would be guilty of Treason, especially after that Proclamation, for he knew not but others might be there, & versabatur in illicito.  
By this Act also, all accession to the Suspending His Majesty, or His Successors, or to the Restraining their Persons, or inviting Foreigners to Invade their Dominions, is declared Treason.  
There is one Branch of this Clause which may seem hard, but was necessary, viz. Or put limitations upon their due Obedience; for the former age and this having invented new Treasons, in asserting, they would own the King, in as far as He would keep the Covenant, or own Jesus Christ; But reserving still to themselves to judge, how far the King did so, they did by a necessary consequence conclude, that they were no further obliged than they pleased; and so made themselves in effect Judges above the King; than both which, nothing can be more Treasonable: And I remember that Sir Francis Bacon in his History of King Henry 7. Tells us, That the Judges of England found Sir Robert Clifford guilty of Treason; because he said, that if he knew Perkin Werbeck were King Edward 's Son, he would never bear Arms against him, though the Words were alleged to be only conditional; for they thought it a dangerous thing to admit and's and ifs to qualify words of Treason, whereby any man might express his malice, and blanche his danger.  
The denying His Majesty's Supremacy, as it was then Established, is declared punishable by in-capacity, and such other punishment as is thereto due by Law; But it had been fitter to Determine that punishment, and from the words as it is now Established; It may be doubted, whether the Impugning the Supremacy absolutely be punishable by this Act, since the Supremacy is extended by a posterior Act, viz. The 1 Act 2 Par. Ch. 2. But that Act being only an Explication of this; all such as Impugn the King's Supremacy absolutely, are punishable.  
From these words also, That they shall be punishable by such other pains as are due by Law in such cases: It may be doubted, what punishment is due to such as Impugn the King's Supremacy, besides incapacity; and it seems they may be pannaled upon the 129 and 130 Acts 8 Par. Ja. 6.  
It has been urged, That all speaking against the King's Prerogative, is only punishable by incapacity and arbitrary punishments, because this Clause says, That if they Speak, Print, etc. against the King's Supremacy in Causes Ecclesiastic, or to justify any of the actings, or practices abovementioned, they shall be so punished; But so it is, that all rising in Arms to Depose the King, etc. are abovementioned, Ergo, say they, The speaking, or Preaching in Defence of these, is only to be so punished; and they urge this from the Principles of Reason, and the practice of other Nations; and that excellent Law, si quis imperatori maledixerit; lib 9 tit. 7. C. but this were a most absurd Gloss: For certainly, if this Objection proved any thing, it would prove, that no words could infer Treason, which is expressly contrary to the very Act, whereby all these Positions are Declared Treason, and consequently all words whatsoever, which express these Positions, are punishable as ●reason; and it is fit to know that it is not that very formula, or words, which are condemned, but these Positions are condemned, for else it were easy to make the Act elusory, and to evade it, by using other words, than the words here set down, and the Analysis of that part of the Act is, that first the Positions are Declared Treasonable. 2. The speaking against the King's Supremacy, and the Ecclesiastical Government, as now Established, etc. is forbidden. 3. The Plotting or Contriving any thing against the King, consequentially to these Positions, is Declared punishable by Forefaulture. 4. That the speaking, etc. against the Supremacy, and the Established Government of the Church, is to be punished arbitrarly; and the words, Or to justify any of the Deeds declared againstly this present Act, are to be restricted to words relative to the Supremacy, etc. mentioned in that Clause only.  
It is also observable, That the Impugning the Government by Bishops, or the King's Supremacy, are only punishable, if they be pursued within eight Months, and Sentenced within four Months thereafter, and are only punishable by this Act, if it was done by malicious, and advised Speaking; and therefore it appears, that such as were Drunk, when they spoke these words, are not punishable by this Act; nor such as are reputed fatuus and Fools, though they be not declared Idiots, or Furious: and yet it seems that all Writing, Preaching, and Prayers, and such malicious Expressions, to stir up the people to a dislike of His Majesty's Royal Prerogative and Supremacy in Causes Ecclesiastic, are punishable indefinitely, and that because either the Law presumes they are premeditated; or because of the great danger arising therefrom, and therefore it will have them punished as such; for the Act runs disjunctively, Writing, Preaching, Praying, or advised and malicious Speaking.  
THis is the first Act whereby Conventicles are Discharged, 
ACT  and in it they are called, Nurseries of Sedition; But yet there is no penal Sanction against them in this Act; but by the 2 Act of the 3 Sess. of this Parliament, they are Declared to be fineable in a fourth part of the yearly Rent, every Burgess being to lose the privilege of his Burgesship, and Merchandizing, beside the payment of a fourth part of his Movables.  
Observ. 1. I see by this Act no Fine imposed upon such as live within Burgh, and are not Burgesses.  
Observ. 2. By this Act it is required, That before withdrawers from public Ordinances be punished, they must be first admonished by the Minister, before two Witnesses, which is not observed.  
Observ. 3. The Council are empowered by this Act to impose such arbitrary punishment as they please upon Withdrawers; But it is thought that such general powers cannot extend to Life, nor Limb.  
Observ. 4. That these Acts are only to last for three years, and are by the 5 Act of the 2 Sess. of the next Parliament, continued for other three years, and further if His Majesty pleases; so that it is in His Majesty's Power to Discharge these Acts, when He pleases.  
By the Laws of the twelve Tables, private and clandestine Meetings, under pretext of Religion, were Discharged; and the word Conventicul●,▪ is oft mentioned in the Civil Law, l. 1. & 3. ff. de collegiis illicitis Plin. lib. 10. Complains of them as the Pest of the Empire. In these Words, Haec tempora serio docent magna monstra talibus parentibus alii, nec quicquam in tota re-publica magis esse perni●iosum vid. de crimine conventicula Farin. quaest. 113. inspect. 4. There is a Proclamation extant in the Registers of Council, in King James the sixths' Reign, Declaring all private Convocations, without the King's consent, and particularly Conventicles (which is the first time I see them named in our Law) to be punishable as Treason; For collegia & conventicula permittere valde quidem est regale. Argen. art. 56. num. 37.  
THis Act appoints the Declaration thereto subjoined, acknowledging the League and Covenant to have been unlawfully imposed, 
ACT 5.  and not to have been Obligator, etc. To be taken by all persons in public Trust, or Office under His Majesty; and which seems to be very strange, all Members of the College of Justice are declared to fall under this general; and such as offer to exerce before they take the Declaration, are Declared to be punishable as Usurpers of His Majesty's Authority; and this punishment is de facto arbitrary, and is imposed by the Privy Council.  
This Act is extended to Bailies of Regality, by the second Act of the 3 Sess. of this Parliament, and by a Decision of the Council; both these Acts are extended to Bailies in burgh's of Barony, though they be expressed in neither of these Acts, and that because of these words in this Act, and all who enjoy any other public Charge, Office, or Trust within the Kingdom; which is (as all general Clauses, aught to be) extended to particulars, that are of the same nature with these, to which the general Clause is subjoined, and there was as great reason to extend this to Bailies of burgh's of Barony, as to Bailies of burgh's of Regality.  
By that Act also▪ such as refuse to accept Offices within Burgh, are punishable by losing their Burgesship, and they may be also▪ compelled to accept, though the Act mentions not this expressly; for by the Common Law, cives cogi possunt ad suscipiendum munera reipublicae l. ss. de decurio: But with us they cannot be obliged to continue longer than a year, January 2. 1668. Wilson contra Magistrates of Queensferry.  
Though this Act of Parliament obliges all who are Privy Counsellors, etc. to take the Oath of Allegiance and this Declaration; Yet His Majesty by a Letter to the Council in November 1679. Declares that the lawful Sons and Brothers of the present King, are obliged to take no Oaths, because of their presumed Fidelity, and that Loyalty is their Interest, as well as Duty; and upon this Ground it seems to be, that His Royal Highness' had not formerly taken these Oaths as Admiral. We see likewise, that both the Sons and Brothers of Kings are Served, not as Subjects, but as the King Himself; and though they be Dukes or Earls, yet they take not place, as other Subjects, but as the Sons and Brothers of the Royal Family: and thus the Sons of Kings were called adminicula augusti, subsidia dominationis, and in St. Matthew, St. Peter affirms, that the Sons of Kings are exempt from Tribute; nor are they in France ever Subjected to any corporal punishment, or put to Death, vid. Le Bret. Tit. des enfans & freres du Roy, & leur Praerogatives. And they are exempted by the Parliament 1681. from taking the Test.  
THis excellent Act does appoint all Sheriffs and Justices of Peace, to assist such as are Rob, 
ACT 6.  or Oppressed in taking back their Goods immediately upon intimation, and to restore them within fifteen days; or otherwise to be liable: but the word immediately does restrict the Act so, as that Sheriffs are not thereby empowered after a long interval, to bring back Goods, or make such Intimations, or raise the people for concurrence; and therefore the Gentlemen of Caithness were found liable in a Spuilzie, for Robbing, and away taking an Heirship out of Strathnaver; though they alleged that they were Convocated, and Commanded by the Earl Caithness so to do, he being Sheriff, and Justice General; and they conceived that they might have been punishable if they had disobeyed; which Defence was Repelled; because though that Convocation was since this Act, yet so long a time having interveened, the Sheriff could only have proceeded via ordinaria.  
It may be doubted from this Act, whether when any man complains of Oppression, as that a Robber, or Neighbour sits violently down upon his Land? The Sheriff and Country are not obliged to concur by this Act, since the Act seems to be restricted to the way of taking of Goods, though it speaks generally of oppression, and I think they are liable in the one case, as well as in the other; and this case being a permanent Act, is more easily redressed.  
By this Act likewise, the Heretors, Wodsetters and Fevars within the Paroch where the Goods are found to have been Disposed, or sparpelled, are declared liable for the value of the Goods; but from the context of the Act it is clear, that they are only liable subsidiarly, in case the Goods cannot be otherwise recovered.  
The words Wodsetters, and Fevars, needed not to have been subjoined to Heretors, for both these are Heretors: But it seems to have been more necessary to have added Liferenters; since it was just that men who are Liferenters should be liable; for a Father may put his Son who is minor in Fee, and reserve the whole Liferent to himself, or a person of quality may Marry one who Liferents the whole Paroch, and so this Remedy becomes ineffectual; because the Act mentions not Liferenters, and in such cases, Liferenters are found not to be comprehended, November 14. 1679. Minister of Morum contra the Lady Beanstoun.  
By this Act such as Kill, Slay, Hurt, or Mutilat the away-takers, or their associates in prosecution of their Goods, are Indemnified.  
Observ. That all who kill in such pursuits, are not Indemnified; but such only whose Goods are taken, or who are obliged to rise, for else such as had private Grudge, might upon that Grudge follow and kill; but yet it seems just that if men were desired, though not obliged; or if Gentlemen being in the House when Rob, should pursue and kill, that they should also be indemnified.  
This Act is generally so well conceived, that if it were well prosecuted, as that it alone might settle the Highlands.  

ACT 8.  THis Revocation seems to be very ill conceived, for it had forgot the Lands of the Principality, which are still comprehended under all other Revocations; and therefore the Parliament thought fit to add this to the Revocation; and if this be valid, there needs no Revocation under the King's Hand; but an Act of Parliament shall be sufficient without a Revocation.  
It is likewise observable from this Act, that the Parliament qualifies the King's Revocation, in sua far at His Majesty Revocks all Deeds done by His Father, by Declaring, that such only are revoked, as were made against the Laws standing in force, before the Year 1637. For otherwise all Deeds done by the late King, might have been challenged upon that Head of vis & metus expressed in this Revocation; but however, Acts extorted, vi majori, either from King or Subject, are null ipso jure by the Common Law, without any special Revocation; but Revocations are naturally only extended to Deeds done in Minority, but not to Deeds extorted vi majore, though this Revocation comprehends both.  
WHen the Clergy submitted their Rights to the King, 
ACT 9  both the Submission and Decreet Arbitral provides, that the Bishops and others of the Clergy, should enjoy the Fruits and Rents of their Benefices, as they were Possessed by them the time of the Submission; and therefore by this Act it is Ordained, That any Valuations of fiends, whereof the Bishops and other Beneficed Persons were in Possession, either by Leading, Drawing, or Rental-bolls since the year 1637. should be null: and yet this Privilege is merely personal in favours of Churchmen; for by a Missive Letter from King Charles the First, the 9 of May 1634. It is Declared that this Favour shall not be extended to the Tacks-men of Bishops, and other Churchmen, they being Laics, but that during these Tacks the Heretor may lead, he finding Caution; and accordingly a Valuation was sustained to James Hamilton of the Lands of Hetherwick against the Earl of Roxburgh, the Bishop's Tacks-man of the Tiends of these Lands; though it was alleged there, that the Submission and Decreet Arbitral having no such quality; but the Tiends whereof they were in possession, being absolutely reserved, no posterior Letter could have prejudged them, and it was a great prejudice to them to have their Tiends valued during the Tacks, for this could not but lessen the Tack-duty and the Grassoums.  
In this Cause it was likewise doubted, what way these Tiends should be valued during the Tack.  
GOvernment belongs to the King, and Property to the People; 
ACT 10.  Yet since the public Interest must overrule the private, all being still preferable to any one: Therefore Government does so far Influence Property, that all Lawyers are of opinion, that the Prince may, for a just Cause, invert or take away Property res privatorum auferre & jus alteri quaesitum tollere: and thus we see that the King may make a Cittadale upon any man's Ground, paying the just price, etc. And sometimes he may throw down the Houses of Suburbs, when there is either actual War, or fear of War, in which Towns may be besieged, so that He is the sole Judge of this justa causa, by which Property may be inverted; and amongst other just Causes, one is the procuring of Peace amongst the Subjects; for procuring whereof, the Prince may remit both the Civil and Criminal Reparations, due to Subjects that are wronged during the time of the War, Gail. lib. 2. observ. 56, & 57 But with us, general Indemnities are ordinarily granted in Parliaments, wherein certainly all private interests may be Discharged, because every private man is presumed therein to be represented: and this Act of Indemnity is one of the most full and formal that ever we had, and in it, all such are Indemnified, as acted by virtue of the public pretended authority of these times; and though an order be necessary to be produced, in cases where Orders use to be given; yet the benefit of this Indemnity was extended to such as were in Arms, though they could prove no Orders, since Soldiers use to get no written Orders, except it were offered to be proven by their Oaths, that they had no Order, or that they converted the Goods pursued for to their own private use, February 15. 1666. Murask contra Gordon: and that any promises made to restore such Goods, did not bind after the Act of Indemnity; though it was alleged that the promise did Innovat the Debt, from a military, to an ordinary Debt; because the Lords thought that that promise might have been given, and emitted upon the Supposition, that the Soldier thought himself liable before the Indemnity▪ and therefore the Lords found him not liable, notwithstanding of the promise, except it could have been prov'n, that he applied the Goods to his own use, or that he wanted a warrant.  
Sometimes also the King does by His Proclamation, grant general Indemnities, as He did in 1666, and 1679. to the Western Rebels; but in this case it was controverted, whether such as had Rob private men's Horses, were liable in Restitution, notwithstanding of that Indemnity; and it was urged that they were: Because 1. What ever might be alleged, where the King had once acknowledged Rebellion to be a pretended Authority & spe●iem belli, by exchanging of Prisoners, and making of Truces with them, etc. Yet here there was not even those pretexts, and so they were only to be considered as a Company of private Robbers. 2. Even this Act Indemnifies only such as acted by virtue of pretended authority; Therefore since even the Parliament did not Indemnify such private Robbers, much less should they be secured by Proclamations. 3. Whatever an Act of Parliament might do, because all persons injured were therein represented; Yet those Proclamations were but general Remissions, and no Remission could prejudge the Party injured of his Reparation, and Assythment. 4. This would encourage all Rogues to be Rebels, that they might rob, and thereafter be enriched by an Indemnity: Whereas on the other hand, it would discourage them both from Rebellion and Robbery, if they knew they behoved to be still liable in Restitution; and though the King did remit vindictam publicam & privatam, by this Proclamation; yet that vindicta privata was not to be interpret damnage and interest; but that Revenge and Criminal Action, which any private party might pursue without the King, and vindicta is still contra-distinguished from damnum & interest. 5. When the Law allows to the Prince a power to remit and discharge the Damnage done to private parties, in contemplation of a public Peace: Lawyers acknowledge that this can only be done, if Peace cannot otherwise be procured; for otherwise public Peace is none of these just Causes, for which Property can be inverted; and therefore any such Indemnity after the Peace is Established, cannot prejudge private Subjects, as to their Restitution as Gail expressly Declares, observe 56. num. 6.   

King CHARLES' 2. Parliament 1. Sess. 3.  
Bishop's being restored in the former Session of Parliament, the King does in this Act Declare, 
ACT 2.  That He will maintain and preserve that Government in the Church, and not give any Connivance to the prejudice thereof in the least; and so all Indulgences are from this still urged to be contrary to the Royal Promise, and the public Faith.  
By this Act Ministers absenting themselves without a lawful excuse from the Diocesian meeting, or not concurring in the Church-discipline, when required by the Archbishop, are to be Suspended till the next Diocesian meeting, and if they conform not then, to be Deposed; and though this be designed chiefly against the Nonconforming Ministers; Yet it has been repined at by some of the Episcopal Clergy, because the Bishops have by it a power to Suspend by themselves; and by the present Discipline of the Church, the Bishop may Depose by himself, without the concourse of the Clergy, even in the Diocesian meetings, though he usually takes alongs with him the advice of the Ministry.  
In this Act withdrawing from public Worship, as well as keeping of Conventicles, is Declared to be Seditious; and therefore each Heretor withdrawing, loses the fourth part of his years Rend; each Yeoman, or Tennent may be fined, not exceeding a fourth of his free Movables; every Burges is to lose his Freedom, and may be fined in a fourth part of his Movables: and the Council have by this Act a very full and undetermined power, to inflict Corporal, beside the former punishments; But it seems that 〈…〉 those Punishments can be inflicted upon Withdrawers, except where they have first been admonished by their Minister in presence of two Witnesses; But since the Minister of the Paroch is not here specified, it was thought that persons might be fined after an Admonition, given by any Minister appointed by the Privy Council, or Presbytry.  
This part of the Act is not expressly abrogated; but the Fines are altered by the 7 Act of the 2 Sess. Par. 2 Ch. 2. By which every Protestant With-drawer (whereas this Act extends both to Papists and Protestants) is to be Fined thus, viz. an Heritor in the eight part of his valued Rend; a Tennent in six Pounds Scots; a Cottar in forty shilling Scots; every person above the Degree of a Tennent, but having no real Estate, in twelve Pounds; Every considerable Merchant in twelve Pounds; Every inferior Merchant, and considerable Tradesman in six pounds; and the other Inhabitants within Burgh in forty shilling; and His Majesty's Privy Council is by this last Act allowed to force all who shall withdraw from their Paroch Churches for a year together, to give bond that they shall not rise against the King, nor His Authority, and to banish or secure them in case of refusal: Whereas by this first Act, there is a general power given to the Council by the Parliament, to do every thing that they shall find necessary for procuring obedience to this Act, and putting the same to punctual Execution; upon which Clause was founded the Councils putting Heretors to give Bond for their Wives, Tenants, and Servants keeping the Church; for since the Parliament might have exacted such a Bond for that effect, it was thought the Council might, since they have by this Clause a Parliamentary power.  
By the other Act also it is appointed, That the same shall continue for three years, except His Majesty shall think fit it continue longer, and it was thought, that this power of Fining might be continued by the Council, without any new express Order from the King, since His Majesty did not Command the contrary: as also upon this Clause was founded the Indulgence 1679. The Parliament having put it in His Majesty's power to punish Withdrawers, or not, as he thought fit, after three years were elapsed.  

ACT 3.  THis Act is Explained in the 5 Act of the former Session.  
THis Act against Protections is Explained fully in the Act 47 Par. 11 Ja. 6. 
ACT 4.   

ACT 5.  THis Act declares the King to have the only Power of Calling or Dissolving Synods; and that His Majesty has not only a Negative Voice in stopping Acts to be made in such Synods, but even a Negative, in not suffering any thing to be Treated or Debated there, except what is contained in his Proclamation, or Instructions.  
This meeting of the Church, is with us called a Convocation, though it be here only called a Synod; Nor can it be denied, but that the Emperors did of old call the Synods, and the formula was Visum est mihi & jussi. Thus Euzeb. Speaking of Constantine, says, Cum per varia loca exorirentur inter Episcopos dissentiones, ipse, seu communis Episcopus a Deo constitutus Synodos ministrorum Dei indicebat. And thus Leo writing to the Emperor Theodosius, si pietas vestra suggestioni ac supplicationi digna●ur annuere; ut intra Italiam haberi jubeatis Episcopale Concilium cito poterunt omnia scandala, quae in perturbationem totius Ecclesia sunt commota, resecari.  
THis Act is Explained in the 10 Act Par. 4 Queen Mary, and and in the Observations upon the 226 Act Par. 14 Ja. 6. 
ACT 6.   
BY this Act all Strong-waters are Discharged to be imported, under the pain of Escheating thereof, 
ACT 7.  because it prejudged the Sale of Barley, which is the great Native Commodity of this Kingdom: But yet by the second Act of the 4 Session of the 2 Par. Ch. 2. All these Acts against strong-waters are Rescinded, and an Imposition thereon is imposed; but yet it was thought by the Council, that notwithstanding of that last Act, His Majesty might by His Prerogative in the Ordering and Disposal of Trade with Foreigners, asserted by the 27 Act of this Session of Parliament, Discharge again the Importation of Brandy, and other strong-waters, and accordingly a Proclamation was issued out, Discharging them in March 1680. and it was urged that the Parliament thought that the King might Dispose upon these, against an express Act of Parliament; for though by this Act the Importation of them be absolutely Discharged; Yet the King had before the other Act allowed the Importation of them, and the Parliament in the Narrative of this Act, Declares That the King had done this upon good Considerations.  
THis Act for preventing the fraudulent mixture of the Finer sort of Tinn with base Mettle, 
ACT 8.  has ordained the Peutherers to put their Name, with the Thi●●le, and the Deacons Mark upon their Work, and that the same be as fine as the Peuther of England, marked with the Rose.  
It may be argued that this Act does not hinder all mixture of Lead and Tinn, for one pound of Lead must necessarily be mixed with two pound of Tinn to make it work.  
The Peutherers and Plumbers are with us under one Deacon, we had no Plumbers till of late; our Peutherers of old having been our only Plumbers; but now it is pretended from this Act, and upon other grounds, that the Peutherers should not work in Lead.  
THis Act Discharging Advocations from inferior Courts, 
ACT 9  for sums within 200 marks, did not except the members of the College of Justice; and therefore by the 16 Article of the Act for Regulating the Session, Causes belonging to the Members, and sums due to Merchants, Cooks, Vintners, and others in Burgh, for Furniture taken off from them, by such as dwell not within the Shire where the Furniture was taken off, are expressly excepted from this Act; and because this Act wanted a Sanction or Penalty; therefore by that seventeenth article, the Clerk of the Bills is ordained not to present, pass, or write on any such Bill at his peril, because this Act of Parliament says, That the Lords shall not pass any such Advocations for Causes which may competently be decided by inferior Judges; Therefore it is ordained by the 16 Article foresaid, That when the Lords pass any such Advocations for sums within two hundred marks, they shall write upon the back of the Bill, that the Lords have found sufficient ground why the Cause should not be pursued in the first Instance, before the Inferior Judge; and this was done to prevent any mistake, and to cause this Act be carefully Observed.  

ACT 10.  THis Act is formerly Explained in the 6 Act of the 23 Par. Ja. 6.  

ACT 11.  THe Exportation of Money being Discharged by many Acts, as Ja▪ 3 Par. 1 Act 8. Ja 1 Par. 6 Act 84. For making these Acts effectual. By this Act every Skipper and Merchant is obliged upon Oath to Declare before the Thesaurer, Thesaurer-depute, or such as are appointed by them, that they shall not carry abroad any more Money than is able to make their Expense to the next Port, and to reveal, either before, or after the Voyage, any who does, and that a Book shall be keeped in Exchequer for that effect; but this Act is not exactly observed.  
BEcause by the 40 Act Par. 6 Q Mary, The carrying of Victuals, Tallow, 
ACT 12.  or Flesh out of the Country, was then Discharged under the pain of Escheating the same, Victuals having been then scarce; Therefore by this Act it is Declared lawful to Export Corns, when the Wheat is under twelve pounds, the Bear and Barley under eight pounds, Oats and Pease under eight marks the Boll; and also, to Export all sorts of barrelled Flesh for nineteen years, free from Custom and Bullion, but the Custom and Bullion here imposed upon Corns Exported, is absolutely discharged by the 14 Act Par. 2 Ch. 2.  
It may be observed from the former Act of Q. Mary. That Skippers are not regularly liable for Transporting Merchandise, forbidden by Acts of Parliament, except the Sanction of the Act do expressly strike against them; since that Act is appointed to be extended to Masters and Skippers, as well as Owners of the Goods; for beside that the Parliament thought fit to express them, which they needed not have done, if the Act had imported it, these words, this Act to be extended, seem to imply that the Act naturally did not import it; for to extend an Act, or any thing else, is to carry it beyond its natural import.  
THis Act Imposing great Impositions upon English Commodities, for the advantage of our own Manufactories is in force, 
ACT 13.  but not in observance; and one of the great dis-advantages of Setting the King's Customs in Tacks is, that it is the Tacks-mens' interest, that all Prohibited Commodities be brought in for the advantage they get by their paying Custom, and for conniving at the bringing them in.  
BY this Act there is a great Custom Imposed upon Victual brought from Ireland; But thereafter by the 3 Act 3 Sess. Par. 2 Ch. 2. 
ACT 14.  Importing of Irish Victual is totally discharged.  
THis Act is formerly Explained in the 63 Act Par. 11. Ja. 6. But it is further observable, 
ACT 15.  that by this Act it is Declared the Duty of all Sheriff's, Stevarts, and Bailies of Regality, to cause apprehend all Rebels, and to count for their Escheats, and to punish all the Contemners of His Majesty's Authority, and this is Declared to be, both by Law and the nature of their Office, a Duty incumbent to them; and therefore it is fit that Sheriffs and others advert to this.  
THis Act Ratifies by mistake the 4 Act Par. 6 Ja. 6. 
ACT 16.  But the Act that should have been cited, is the 74 Act of that Parliament; This Act Ratifies also the 168 Act of this 15 Parliament, but it should have cited the 268.  
The Act itself provides for the maintenance of Beggars and Manufactures, by putting the one in the other; but the Act was never observed, though in itself it be a very excellent Act.  
THese Acts are Explained in the 96 Act Par. 6 Ja. 4. 
ACTS 17 & 18  But for further clearing of the Act 16, It is sit to know, that though Coals were forbidden of old to be Exported by the 84 Act Par. 9 Q. Marry; Yet when they grew more frequent, they were allowed to be Transported, and Custom and Bullion is put upon them, viz. Two ounces of Bullion for every four Chalders Coals, as is clear by the 37 Act Par. 1 Ch. 2. and by this Act the Culross Chalder is Declared to be the measure by which the Custom and Bullion is to be Exacted; because as I conceive, that was the least of all Chalders: The Lothian Chalder of Coals being generally a third more; but thereafter Bullion being only Imposed upon Goods Imported; Coals do now pay no Bullion, for Exporters pay no Bullion, and there are no Coals Imported to this Nation.  
THe keeping Mercats upon Sunday was Discharged, 
ACT 19▪  122 Act Par. 12 Ja. 6. and by this Act they are Discharged to be kept upon Monday, or Saturday, lest people might be obliged to Travel to, and from Mercats on the Sabbath: But by that Act it was appointed, that they should keep them upon any other Day, not being the Market-day of the next Burgh; which provision in favours of the next burgh's was ill forgot here, vide the Observations upon that Act.  
THis Act is formerly Explained in the Observations upon the Act 48 Par. 3 Ja. 6. and the 7 Act 3 Sess. 1 Par. Ch. 2. 
ACT 21.   

ACT 22.  THis Act is Explained in the 62 Act Par. 1 Sess. 1 Ch. 2.  

ACT 23.  THis Act is Explained in the 25 Act of the 1 Sess. Par. 1 Ch. 2.  
THe Bishops having consented by this Act to the Imposition upon themselves, 
ACT 24.  in favours of Universities, it is Declared, That this Act shall be no preparative for laying on any burden upon the Clergy hereafter▪ without their own consent; From which it may be argued, that though all the rest of the Parliament should consent to an Imposition upon the Clergy, yet that would not be valid, except they themselves consented to it, though the Imposition were carried by plurality of Votes; but this Inference is not concluding; for the Parliament is a Collective Body, Composed of the King, and three Estates, in which the major part determines the rest; and if this were granted to the Clergy, they being but a third Estate; every one of the other two Estates might pretend the like; and so each Estate should have a Negative as well as the King: Whereas not only Craig has Determined that the Parliament may make an Act, without the consent of any one of the States, having stated this question expressly; But we see that the Burrows having unanimously dissented from the 5 Act of the 3 Session of the second Parliament, concerning the Privileges of Burghs-Royal, the same was notwithstanding past in Parliament, and we all remember the memorable story of the Burrows, rising and leaving the Rebellious Parliaments 1649. before the Parliament passed the Act for allowing the value of Annualrents, whereupon a worthy Peer said, that since they had sitten so long without the Head, they might well enough sit without the Tail.  
BY the 14 Act of the 1 Sess. of this Parl. the Annuity of 40000 pounds Sterling being granted to His Majesty, 
ACT 25.  to be uplifted out of the Excise in manner mentioned in the said Act; by this Act the proportion of the said Excise is Regulated, and laid on upon the several Shires and burgh's accordingly.  
Nota. This is the only Act wherein I find the word Grievances.  

ACT 26.  BY this Act the Militia of 20000 Foot, and 2000 Horse is Established, which was found not to take off the Obligation of rising betwixt 60 and 16 according to the ancient Laws, for attending the King's Host, when called for; This Act Declares, That if His Majesty have further use for their service, they will be ready every man betwixt sixty and sixteen, to join and hazard their Lives and Fortunes, as they shall be called for by His Majesty: and though it be pretended, that at least they cannot be called betwixt sixty and sixteen by this Act, without an express Order from the King: The words running, When called for by His Majesty, without adding, or the Council in this Clause, as it did in the former immediate Clause of this same Act, and which shows that this was designedly omited in this Clause; yet we see that the Council does call to the Host all betwixt sixty and sixteen, without express Warrant from the King, and that the Justice's fine such as are absent upon these Proclamations; and which is very just, because the King is still presumed to be in the Council sictione juris, they Re-presenting by their Commission His Royal Person; and we see by many Instances, that Rebellions may rise before any such Warrant can come from the King.  
By this Act it is Declared, That these Forces shall be in readiness, as they s●all be called f●r by His Majesty, to march to any part of His Dominions of Scotland, England, or Ireland, for suppressing of any Foreign Invasion, Intestine Trouble, or Insurrection, or for any other service, wherein His Majesty's Honour, Authority, or Greatness may be concerned, Which Clause was much excepted against by some in the Parliament of England, as if Scotland had thereby designed to Authorise the Invading of them; but it cannot be properly said to be an Invading of them, if we be called by the King; and the Calling of Subjects etiam extra territorium is inter reservata principi, and a just Right of all Kings, as is clear by Castal. de Imperatore quaest▪ 57 num. 57▪ And the Subjects of this Kingdom have been ofttimes fined, and Fo●efaulted, for not attending the King's Host, when they were called to Invade England; nor could any War be managed, or Rebellion suppressed, even in the justest Cases, without this.  
BY this Act, 
ACT 27.  the Ordering and Disposing of Trade with Foreign Count●●●s▪ is Declared to be His Majesty's Prerogative; and though it be alleged that this Act was only Designed as a power to His Majesty, for the better Debarring English Commodities, whereby to bring both the Nations to an equal balance of Trade; which Design was said to have been then represented to the Parliament, as the only Motive for making this Act, and that if this were allowed in its full extent, our Kings might by Debarring us from Iron, Copper, Timber, Spices, and other necessars, force us to any Condescendencies, or might by this Prerogative, grant Monopolies at their pleasure: Yet I see not how this Gloss is consistent with the general words of the Act, or with our Declaring that this by the Law of Nations, belongs to all free Princes: Or with subsequent Parliaments, allowing the privileges granted to the Fishing Company, the prohibiting of Brandy, and other strong Waters, and several other things, which are founded solely upon this Act.  
It may be Debated, whether under the word Foreigners, the English may be comprehended, since we are not Treated by them as Foreigners in the point of Succession, it being frequently decided amongst them, that the Scots may succeed to heritage in England, notwithstanding of their Statute, debarring alibi natos; and why then should they be repute as Foreigners to us in the matter of Trade; and this were indeed solid Reason for both Nations; but since the English debar us from their Plantations, and look upon us as Foreigners in the point of Trade, it is just that we should give them the same measure.    

King CHARLES' 2. Parliament 2.  

Session 1.  
IT is observable, that in all the Sessions of this Parliament, the particular day of the Month whereupon the respective Acts were passed, is set down, and yet since the Acts are to take effect, not from the passing, but from the publication, as is clear by the 3 Act of this Parliament, it would have seemed more rational to have set down the day of the Publication; To which nothing can be answered, but that the Laws are presumed to be published the day they were passed in. In no former Parliament the day is set down, but the whole Parliament is said to be held upon such a day, and the old use was, that the Articles prepared all the Acts, and they were all past in one day.  

ACT 1▪  THis Act Declaring the King's Supremacy in Ecclesiastic Causes, is formerly explained in the Observations upon the 2 Act Par. 18. Ja. 6.  

ACT 2.  IT is observable from this Act, that the Militia is come in place of the old Weapon-showings, and that there being 20000 Foot, and 2000 Horse granted as a Militia, by the 26 Act 3 Session of the first Parliament, which does specify the particular proportion of Horse and Foot, to be given by every Shire; It might have been thought, that these proportions could not have been altered but by the Parliament; and yet the King and Council having Converted the Foot of some Shires unto Horse, seems to be founded upon the last Clause of the former Act, whereby His Majesty is entreated to give Directions to His Privy Council for managing of that whole affair, as His Majesty shall think fit: which Acts of Council, and the said alteration of the proportions, are hereby Ratified as having been Legal; and in the last Clause of this Act, His Majesty's Subjects are Commanded to obey whatever Orders and Directions they shall receive from the Privy Council, relating to the Militia, and upon these Clauses was founded the overtures of the late Conversion of the said 22000 to 5000, augmenting the number of the days, wherein the said 5000 are to serve, according to what might have been exacted from the whole 22000, so that the 5000 are to meet▪ the number of 176 days, because the 22000 were obliged to meet forty days; though this last model was by some objected to be a standing Force: and all Laws are stricti juris, and to be fulfilled in forma specisica; but especially Taxations, which are a Gratuity, founded upon the free Offer of the people, as this is, to allow Conversions in such Cases, would discourage the Subjects from future offers.  
This Act likewise did Ratify the Acts of Council, which appointed the Shires to provide at their own Charge, Colours, Standarts, Drums, and Trumpets, though that might seem an Imposition; but these being necessars, and the natural Consequents of the first Grant; and the Parliament having granted to the Council the former power, as said is, these Acts of Council are therefore hereby approven as Legal.  
Both this and the former Act do ordain the Militia to be furnished with forty Day's Provision, which was the old provision, that was ordinarily to be made by such as came to the Host; albeit sometimes twenty day's provision be only appointed, as in the 90 Act 13 Par. Ja. 3. And of late the Council has ordained this provision to be made in Money, though it was contended that the Parliament having appointed only provision to be made, it was in the power of the persons obliged to furnish their own men according to their conveniency; But Money being thought fitter for expedite Marches, the Council thought they were authorized by the former Clauses, to make this Conversion; and some have thought that by the same power, the Council could ordain the Shires from whom no proportions of Militia was sought to advance free Quarter to such of the Militia, as could not furnish themselves, or at least, might force them to be the first advancers in Cases of necessity.  
This Act concerning the Militia is further cleared by the first Act of the third Session of this Parliament, appointing such as 〈…〉 serve either as Officers, or Soldiers in the Militia, to accept and to take the Oath of alleadgeance; and that those who are set apart for the Militia, be not altered, etc.  
NOtwithstanding of all our former excellent Acts, for securing singular Successors, yet they were still un-secure, 
ACT 3.  because they could not know, if the Vassal had Resigned his Feu ad remanentiam, in his own Superiors hand; for in that case there was no Season requisite, which is the only Register whereby singular Successors know, if Lands were formerly Disponed; and therefore by this Act it is appointed, that these Instruments of Resignation ad remanentiam, (which are equivalent to Seasins,) be Registrated in the Register of Seasins, within sixty days, which is the time appointed for Registrating of Seasins by the 16 Act Par. 22 Ja. 6.  
By this Act likewise as in that Act, Instruments of Resignation of Lands, holding Burgages, are excepted; but it seems that they must be Registrated within the Town-Court-Books within the same sixty days; for the Act says only, That such Instruments being Registrated there, shall not fall within the Certification.  

ACT 4.  BY this Act it is Declared unlawful to poind Movables upon Registrat Bonds or Decreets, for personal debts, till the parties be first Charged, and the days of the Charge expire; The reason of which Act was, because Noblemen and persons of quality were ofttimes poinded, and so affronted, and Merchants surprised, and thereby Ruined, before they knew that a Decreet was recovered against them, or their Bond was Registrated: But this Act was found not to extend to other Diligences ex paritate rationis; this being an Act restrictive of former Laws and Customs. From this Act are expressly excepted poindings used against Vassals for their Feu-duties: But this Exception was very unnecessary and unproper; for such poindings did not at all fall under the prohibition of the Statutory part of the Act, which only prohibits the poinding Movables for personal Debts; Exception is likewise made of Decreets obtained by Heretors against their own Tenants in their own Courts only; and therefore it has been doubted, whether Tenants may be Removed and Ejected, without a previous Charge; and though upon Decreets before the Lords, previous Charges are necessary; Yet upon Decreets of Removing before inferior Courts, it is the Custom to eject immediately; and though this may seem hard, yet it is necessary, because the intrant Tennent must Remove immediately, and so must have a place, to which he may remove, & sibi imputet, the Tennent who being warned did not provide himself timeously.  

ACT 5.  IT is fit to observe from the Narrative of this Act, that the Parliament thought the King and Council had power to emit Proclamations, Commanding the Paroches to Protect and Defend their Ministers, and to be liable to such Fines as the Council should think fit, besides the Minister's Reparation, if the Offenders were not brought to condign punishment, which shows what great power the King has in the like Cases; and the Council are hereby authorized to proceed in taking such courses for the future, which general power may go very far, especially where these courses are otherwise satisfied by necessity.  
This Act is more fully Explained in the observations upon the 27 Act Par. 11 Ja. 6.  
FRom this Act Discharging Suspensions against Bishops, Ministers, and other Beneficed persons without Consignation: 
ACT 6.  It is observable from comparing the Narrative and Statutory part of the Act, that Universities and Colleges are still accounted a part of the Clergy, and have still the same privileges with them.  
SInce we find that the Parliament grants Acts for Naturalisation of Strangers, as is clear by this and by the 65 Act Par. 8 Q Mary. 
ACT 7.  It may be doubted, if the King can Naturalise Strangers by a Deed of His, for else those Acts were unnecessary: and in England, though the King can grant a Charter of Denization, which lasts only for Life; and though it enables a man to Transact his Heritage to his Children; Yet His Majesty cannot there Naturalise without Act of Parliament; and it may be urged, that since third parties, who would otherwise succeed, are prejudged by the Naturalisation; that therefore this cannot be done without an Act of Parliament; especially if there be once jus quaesitum to any party: But by the Civil Law, the Prince could Naturalise, l. 1▪ ff. de jur. aur. annul. Of old Strangers acquired only usum toga; and at last were received inter cives, l. 31. & 32. ff. de jur. Fisci. And with us Craig observes, that bona immobilia nemini ablata memini ex eo quod extraneus esset: And I find it decided that Strangers may succeed with us, January 13. 1675. And that Strangers doing Diligence for their Debts, may enjoy and affect Lands in Scotland, seems more favourable, for else there could be no Commerce, for without this none would trust our Merchants or Countrymen.  
The Design of proving Trade, by Naturalising Strangers, has been very ordinary; for as Plinius Remarks nunc factum est ut gens altera alterius suppleret inopiam & ut quodam modo quod genitum esset uspiam apud omnes natum esse videretur in France Lewis the 11. Did upon the same Design Naturalise those who Traded in the Hanseatick Towns.  
TO encourage the Exportation of Commmodities, the Bullion which was formerly payable by the Exporters, 
ACT 8.  by the 37 Act 1 Par. Ch. 2. Is by this Act imposed upon the Importers.  
BY this Act all Arrestments on Registrated Bonds, or Contracts, 
ACT 9  or Decreets not pursued and insisted on within five years after the Date: and all Arrestments upon Dependences shall prescrive, if not insisted on within five years after Sentence; so that there is here a new visible difference betwixt Arrestments on Dependences, and Arrestments upon Decreets, but upon the matter that comes to be the same; For all Arrestments upon Dependences, are likewise by this Act to prescrive within five years from the Sentence, that is to say, from the Decreet; so that utrobique the prescription begins from the Decreet.  
By this Act likewise, Ministers Stipends, Multures, Bargains concerning Movables and Sums of Money, that are probable by Witnesses, are after this Act declared only probable by Writ, or Oath of party after five years; and all actions upon Warnings, Spuilyies, Ejections, Arrestments, or Ministers Stipends, are to prescrive within ten years, except they be Wakened every five years, but prejudice alwise of any of the said's actions, which by former Acts of Parliament, are appointed to prescrive in a shorter time; Which Exception is here added, because of the Acts 81, 82, and 83. Par. 6 Ja. 6. By which Spuilyies, Ejections and Remove, did prescrive within three years; Yet if any action was intented upon them, it did not prescrive otherwise than in forty years: Therefore by this Act, these Actions are Ordained to prescrive in ten years, except the action be Wakened; that is to say, a new Summons raised and executed; for the raising of a Summons is not sufficient in any case to stop Prescription, vide Observations upon these Acts. It was sound, Hamilton contra Herreis, March 20. 1683. That this Act was not to be extended to the Teind-duties due to Bishops, or other Titulars, being only a Correctory Law: and in the Case pursued by Sir William Purves contra It was Debated that a part of what was due to the Minister, could not prescrive, because it was Mortified Money, and Mortifications are not appointed to prescrive by this Act; But the Lords found that if a Mortification became a part of a Stipend, they did prescrive by this Act, though of their own nature they do not prescrive: Holograph missive Letters, and Holograph Bonds and Subscriptions in Compt Books, without Witnesses, not pursued on within twenty years, are only to be proven by the Oath of the Subscriver, so that if the Subscriver die, these Debts die with him. I remember the Parliament expressly refused to limit Bills of Exchange to this time; though these be Holograph Papers, because these being the Vehicles and Supports of Trade betwixt us and Foreigners, ●hat were to limit them by too narrow Statutes.  
These Prescriptions are ordained not to run against minors; and from this and the next Act it may be argued, that Prescriptions regularly run against Minors, except they be secured by a positive Statute.  
BEcause Citations do interrupt the current of a Prescription; therefore this Act does appoint that only Executions by Messengers shall interrupt, 
ACT 10.  which was done to Exclude Sheriffs; In that part Messengers being persons of public Trust, and who find Caution; But though this Act mentions only Messengers, and that it is correctory of a former Custom, and consequently aught to be strictly Interpreted: Yet Citations by Heralds or Pursuivants will Interrupt; nam majori inest minus: It was alleged that this Act should extend to all Interruptions, so that if an Interruption had been made in anno 1660. It should be renewed after this Act; for the Act says, That all Interrupions shall be Renewed eurey seven years: But it was found, February 5 1680. Colstoun contra Barefoot. That only such Interruptions should be renewed as were made since the Act of Parliament; for the first part of the Act bears, That all Interruptions as to Rights of Lands, shall in all time hereafter be Executed by Messengers: and the last part of the Act must be Interpreted according to the first, and agrees with the general Nature of Laws, quae futuris tantum dant formam negotiis. Since this Act is only to extend to Interruptions, concerning the Rights of Lands, some have doubted, whether it should extend to heritable Bonds and Servitudes.  
BY our former Law Explained in my crim. prac. tit. Treason; It appears clearly, that no man could be forefaulted in absence, 
ACT 11.  except before the Parliament; But this being thought a great encouragement to Rebellion, the Justices did, upon an advice from the Lords of the Session, alter the Conclusion of Criminal Libels for Treason, making the Certification to be, that probation should be led against them, and they should be Forefaulted, as if they were present; and therefore by this Act, these Decreets of the Justices are Ratified, and for the future, It is Ordained, that such as rise in Arms in open and manifest Rebellion against the King, may be Forefaulted before the Justice Court: So that this method can only be taken against such as are guilty of Perduellion, but not in Statutory or other Treasons, such as the raising a fray in the King's Host, drawing Treasonable Papers, etc. For these can yet only be forefaulted before the Parliament, though they may be declared Rebels before the Justices: and it has been doubted, whether the hounding out to open Rebellions, or the Resetting those who were at them, be punishable by the Justices in absence; for Art and Part is by the 114 Act Par. 12 Ja. 6. To be punishable as the Crime, whereof it is an accession, and it really deserves ofttimes a severe and speedier animadversion: and thus a Nobleman of great interest Plotting, o● Hounding out, is more dangerous than a Tennent who actually Rises in Arms: But on the other side it is urged, That Rising in Arms is to be pursued so in absence, because the Probation is so notour, that it can hardly be denied, but the probation of secret Treasons may be more dangerous, if taken in absence.  
It has been doubted, whether such whose Forefaultures were Ratified by this Act, could be thereafter admitted to propone an Exculpation, since the Justices could not Rescind Sentences of Parliament? and whether such as are Forefaulted before the Justice-Court, can be admitted to propone any such Exculpation upon their being alibi? (or else where) Or that there was two of the same Name, or to object against the Witnesses, for the persons Forefaulted being cited, sibi imputent, that they appeared not? and if this were allowed, Forefaultures might be easily Evacuated; and whatever might be said as to alibi in the first Instance, yet it were hard to Reduce a Decreet upon it, and except the person Forefaulted could prove an invincible necessity, why he could not come, or send, certainly none of these Defences can have the least shadow of Justice; nor is it sufficient to say, That they were either afraid, or out of the Country; for these are the ordinary Defences of such as are guilty, and any guilty person might go out of the Country purposely to have this Defence.  
The method now observed in Forefaultures in absence, before the Justice-Court, is, that the Advocate Raises a Libel of Treason with the former Certification, he sends a Herald with a Displayed Coat, to give the Citation, and sends Witnesses alongs, who at their Return, swear that they saw the Execution truly Executed; because that was found to be the Form before the Parliament. Then the Witnesses are adduced, after the Relevancy is cleared by Interlocutors, who are Examined whether they knew the party who is to be Forefaulted, which excludes the Defence, that there were more of one Name, as the purging them of partial Council does all objections against the Witnesses, that can be thereafter founded upon, since it was their own fault, who compeared not to object.  
The Advocate uses ordinarily to cause Cite the Pannals upon sixty days, and at the Mercat Cross, and at their Dwellinghouse, lest they be out of the Country; at all which places, Copies of the Libel, the Names of the Assizers, and Witnesses are left.  
Though ordinarily the Advocate, for further Terror, causes Renverse, and Tear the Coat of the Persons Forefaulted, in the Justice-Court, with sound of Trumpet, after the Doom of Forefalture, and Proclaim them Traitors over the Cross with sound of Trumpet; Because that Solemnity is observed in Forefaultures before the Parliament; yet this is not thought absolutely necessary.  
It is observable, That in the Process against the Earl of Mar and others, for taking away King James the Sixth from Stirling: and the Earl of Gowries Forefaulture, the Summons were before the King, Parliament, and His Justices, and the Doom is, the King with the advice of His Parliament, and His Justices: Some think the Justices sit only in Parliament, as the Judges sit in England; But the Summons having been before them, insinuats that they were conjunct Judges, and not Assessors. The probation in that case is led before the Lords of Articles, and not before the Parliament; but in anno 1661. The probation was led in plain Parliament, and this is juster, because the Parliament is the Grand Inquest.  
The last words in the Act, viz. If the said summons be found Relevant, and proven by the Verdict of an Inquest, are wrong Pointed; For the summons cannot be found Relevant by the Verdict of an Inquest.  
BY the 39 Act Par. 1 Ch. 2. 
ACT 12.  Foreign Salt to be employed upon Fishing, was to be free of Custom and Excize; but by several Acts of Exchequer thereafter, all Fishes spent within the Country, lost that privilege, and by this Act the Importer is ordained once to pay all the Excize on foreign Salt, which is to be Re-payed by the Customers, to such as can by Certificats prove, that the same was employed upon Fishes; and though it was pretended, that this could not prejudge the Importer, since he was to be Repaid, if the Salt was employed upon Fishes; whilst on the other hand, it would secure the King's Customs, and would keep out much Foreign Salt, whereof very much was now brought in, upon pretext of being employed upon Fishing: Yet to this it was answered, that this would destroy the Design of Fishing Companies, and show too much the Inconstancy of our Parliaments. 2. Many poor Families were employed in Fishing, who would get credit for Salt, and yet would not get Money to pay the Excize thereof per advance. 3. Fishers were sometimes forced to bring in great quantities of Salt, being uncertain what quantities of Fish would be taken; and oftimes they would lose their Salt altogether. 4. This and all such Methods, which subjected the Merchant to the Customer, destroyed Trade, and in this case they had but a personal action against public Servants for their advanced Money, and probably these public Servants would not have so much Money at once in Lews, L●chsine, etc. as would pay back the Excize of Fishes exported out of these Places, and beside that, the Customer might Retard the Merchant at his pleasure. 5. The poor Merchant behoved still to make two unnecessary Voyages, one to pay the Excize, and another to seek payment.  
By this Act likewise, the Merchant is ordained to give his Oath upon the Custom and Excize, though by the 57 Act Par. 1 Ch. 2. Their Oaths are discharged in matters of Custom.  
THis Act annexing Orknay and Zeatland to the Crown, 
ACT 13.  is Explained in the Observations upon the 41 Act Par. 11 Ja. 2.  
BY this Act it is Declared lawful to Export Corns, 
ACT 14.  except when the same is Discharged by the Council, upon the account of Dearth, and to encourage Exportation, Corns are to pay no Custom, Bullion, or other Duty, except one Mark Scots for ilk Chalder, Vid● Observations upon the 11 Act Sess. 3 Par. 1 Ch. 2.  
BY this Act the Lords of the Privy Council are Empowered to Regulate the prices of Ale and Drinking Bear, 
ACT 15.  and to settle a proportion betwixt the weight of the Bread and the Boll of Wheat, and the price of the Ale, and the Boll of Bear; upon which Warrant, the Privy Council do not pretend that they can settle a price upon Victual, but that they may thereby only proportion the price of the one with the other, so that they may Discharge Maltmen or Baxters to give less than such respective prices, when they sell their Bread and Ale at such and such Rates, as they did by their Proclamation in the years 1677. and 1680.  
By this Act Maltmen are likewise discharged▪ to have a Deacon, and lest this Act should be eluded, it is appointed, That no Maltman shall keep Correspondence, nor meet upon any pretext whatsoever; and therefore I conceive, that such Towns as appoint, that none shall brew except Gild-brothers; and in meetings of the Gildry, Treat of, and settle the Prices of Malt, Seed, and Bear, do thereby contraveen this Statute, vid. Act 29 Par. 1 Ja. 6.  
THis Act having appointed, That Sheriffs and others, may conveen all Tenants, 
ACT 16.  and Cottars, etc. for Repairing Highways, and Bridges, at any time betwixt Seedtime and Harvest; and that being found too short a time, It is therefore appointed by the 9 Act of the second Session of this Parliament, that they may be called the same number of days, in any Season of the Year, Seedtime and Harvest excepted.  
THis Act is Explained in the Observations upon the 41 Act Par. 1 Ch. 2. 
ACT 17.   
THis Act is Explained in the Observations upon the 7 Act Par. 23 Ja. 6. 
ACT 18.   
THis Act is Explained in the Observations upon the 6 Act Par. 20 Ja. 6. 
ACT 19   
BY this Act the Shires of Ross, Sutherland, Caithness, Argile, and Inverness, 
ACT 20.  are Declared to be liable in the double of the Excize, and of the Taxation then current, laid on by the Convention, in case of their being Deficient; against which Act, it was alleged at the passing thereof, that this seemed very unjust, since as to both these, one Shire could not be put in a different Condition from the rest, in a common concern; but that the legal way was, to use stricter Execution against them; and whatever might be done at the first laying on of an Imposition; yet after it is laid on, this seems hard, for probably these Shires would not have Consented, if they had foreseen any singularity, nor did they consent to the Excize, but upon equal Terms with other Shires, and this was yet much harder, because both these Taxations were voluntar Offers, and consequently should not be otherwise exacted, than in the Terms in which they were offered. Likeas, this would discourage any Shire for the Future, to offer, or consent to Taxations, because they could not know but a prevailing party, or the passion of some leading men, might raise to the double what they consented to; which Reasons were so convincing, that this Act was never put in Execution; nor do I think it could, without a previous Declarator, finding that these Shires had incur●ed the Duplication, by failing to pay their Shares; for otherwise, His Majesty's Collectors, and Cashkeeper might exact the double, when it was not incurred; and we see that all other Irritancies, even Imposed by the Parliament, such as ob non solutum canonem, require a previous Declarator, and are purgeable at the Bar.   

King CHARLES' 2. Parliament 2. Sess. 2.  
THis Act is Explained in the Observations upon the only Act of the Par. 17 Ja. 6. 
ACT 1.   
SOme fanatics having, 
ACT 2.  against the Laws and Customs of Nations, Refused to Depone, when they are called as Witnesses against those of their own Opinion; It is Declared by this Act, That such as refuse, shall be banished and fined. Qui testimonium dicere recusant paenalibus mandatis compelli possunt, l. si quando & auth. seq. C. de Testibus, Vid. Ruland. de Commiss. part 2. lib. 2. c. 7. & mortaliter peccant. c. quisquis 11 quaest. 3. cap. 1. X the Test, cogend.  
It may be Doubted, whether such as refuse to Depone in matters of Treason, may not be punished as concealers of Treason; for this is in effect the worst kind of concealing; for others may conceal, because they fear want of Probation, or upon other Designs, without any malice, but this still proceeds from Design; and it seems that in all other Crimes, he who refuses to Depone against a Delinquent, is as guilty as he who Rescues him by force from the hand of Justice; for the contempt of Authority is equally great in both, and the prejudice arising to the Commonwealth, is the same.  
It is Declared by this Act, That nothing that any man Depones against another, shall operat against himself, as to the loss of Life, or member, or Banishment, which seems to be ill conceived; for nothing that a man Depons as a witness, can operat against himself de jure, as to any effect; but it seems the Design of the Parliament has been, that parties should be obliged to Depone upon Conventicles, and Resetting off, and Intercommuning with Rebels, not only as Witnesses, but as Parties; and in the words immediately before, it is said, that they should be forced to Depone in those things, for the more speedy Execution of Justice: But to take off all scruple in this, the King by His Letter in anno 1674: allowed His Advocate to Declare, that He did insist only, ad paenam p●cuniariam & arbitrariam; and that thereupon they might be forced to Depone in these Cases; but it being alleged that this Declaration was not sufficient to force people to Depone: Because 1. Resetting of Rebels imported Infamy, because it was Treason, & nemo tenetur jurare in suam turpitudinem. 2. No Declaration without a Remission past the Great Seal, can secure a man in such Cases; yet both these Defences were Repelled by the Privy Council in the case, King's Advocate contra Laird of Duntreath, June 30. 1681. For as to the first, It was answered, That some Crimes did defame omni jure, as Incest, Adultery, etc. and in these a man could not be obliged to Depone against himself, because the King's Declaration could not take away the Stigma impressed by the Laws of God and Nature: But in Crimes Introduced only by the Municipal Laws, in favours of the King and His Government, the Infamy may be taken away by the Declaration; and where the King's Advocate Declares, he insists not in it as a Crime, but as an irregular Transgression; The Confession does not Defame, because no Crime is acknowledged. To the Second, it was answered, That there needed no Remission, where the irregularity was not pursued by way of Crime: Remissions being only of Crimes, and there was nothing more ordinary, than for His Majesty's Advocate in all Courts, to restrict his pursuits to arbitrary punishments, as in the Cases of Mutilations, Hamsucken, etc.  

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

ACT 5.  BY this Act, the Fines appointed for House-Conventicles, are for every Man and Woman having Land and heritage, Liferent, or proper Wodset, a fourth part of their valued yearly Rent; each Tennent, twenty five Pounds; each Cottar, twelve Pounds; each Servingman, a fourth part of their Fee; each Merchant, or chief Tradesman, to be Fined as a Tennent; and each inferior Tradesman as a Cottar; if their Wives or Children be present at House-Conventicles, they are to pay the half of the respective Fines; and if themselves be present at Field-Conventicles, they are to be Fined in the double of these Respective Fines; so that though the Act do not specify Wives and Children, yet they are to be comprehended under the word others.  
Field Conventicles are by this Act Declared to be Meetings where any shall without Licence or Authority, Preach, Expone Scripture, or Pray in the Fields, or in any House where there are more persons than the House contains, so that some of them are without Doors; which last alternative was added; because some, to shun the double avail, Preached within a little House, many thousands being without.  
It has been doubted whether those who were within, and knew not that any were without, can be punished as a Field-Conventicle; for though versabantur in re illicita; yet it was such, a res illicita, as had a determined and different punishment, and it were hard that where the punishment is Death, as it is for the Minister Preaching at a Field-Conventicle, that he could be overtaken, where he could not know his Gild.  
It seems by this Act, that if the House could hold more, though some were known to be without Doors, yet that Meeting could not be called a Field-Conventicle, since the Act says, or in any House where there be more persons than the House contains, and the Reason inductive of the Act ceases in this case.  
By this Act Magistrates of Burghs-Royal are Fineable at the Councils Pleasure, for each Conventicle keeped within their Burgh; but that which was thought somewhat severe by the Burrows, was, that they should have been Fined, where they discovered the Conventicles themselves, since in Law, Diligence can only be required in Magistrates; and in Policy it seems, that this would discourage Magistrates from doing Diligence to discover; Nor is it sufficient that by this Act they have Relief from those who were present at the Conventicle, since these ofttimes are neither known, nor able to Relieve.  
The Master and Mistress of the House likewise where the Conventicle was kept, are liable to relieve the Magistrates, upon which ground, an Act of Council was made, making the Heretor liable for the Fines; against which it was objected, that the Parliament 〈◊〉 not the Heretor liable, but the Master, which is the Landlord, who because he is present, may hinder the Keeping of Conventicles in his House, which the innocent Heretor, who may be very remotely absent, cannot.  
By this Act the Minister who Preaches at Field-Conventicles is punishable by Death; but the Minister who keeps House-Conventicles, cannot be so much as Fined, for he is only ordained to find Caution not to do the like thereafter, under the pain of five thousand Marks, or to enact himself to go out of the Kingdom, and not to return.  
By this Act the half of the fines are declared to belong to Sheriffs, Stewarts, Lords of Regality: and therefore by the 17 Act of the 3 Sess. Par. 2. They are ordained yearly to give an account of their Proceedings to His Majesty's Privy Council, under the pain of five hundred marks: In which Act this Act is Explained as to some other points.  

ACT 6▪  BY this Act, such as offer their Children to be baptised by any but their own Ministers, or by such as are authorized by the Council, in absence of their own Minister, upon a Certificate from their own Minister, or in his absence, from one of the Neighbouring Ministers, are to be fined, i● an Heretor, in a fourth part of His valued Rent; Every person above the degree of a Tennent, having only a personal Estate in an hundred pounds Scots; Every inferior Merchant, considerable Tradesman, and every Tennent labouring Land in fifty pounds Scots; Every meaner Burges, Trades-man, and Inhabitant within Burgh, and every Cottar in twenty pounds Scots; and every Servant in half a years Fee: But because upon this Act, these who would not conform, did, to shun these fines, delay to Baptise their Children; Therefore by the 11 Act Sess. 3 of this Parliament, the same fines are Imposed upon such as keep their Children unbaptised for thirty days.  
THis Act is formerly Explained in the 1 Act Sess. 3 of the 1 Par. Ch. 2. 
ACT 7.  But for further clearing thereof it may be observed that since by this Act Husbands are not made liable for their fines, as by the 5 Act of this Parliament; It was urged, that therefore they could not be fined for them; since it was presumeable they were designedly left out here, because though a man may hinder his Wife to go to a Conventicle; and therefore was justly punished by that, for her going, whereas no man can force his Wife to go to Church; and therefore he was not to be punished for her in this Act: it was also urged, that Laws should not be extended de casu in casum, where it was probable, that the ommission was designed; and so though Adjudications and Comprisings were equipollent Diligences by our Law, yet it was found that an Adjudger was not liable to pay a years Rend for his Entry, as a Compryzer was, because the Statute appointing the one, had not expressed the other; and therefore an express Statute was made, for extending this to adjudications, which is the 18 Act Par. 2. Ch. 2. and this extension was less favourable, because it was a penal Statute, and it was against the principles of Law, that one person should be punished for another; To which it was answered, That the Parliament had referred the Regulation of Conventicles to the Council, and had invested them for this end, with their own full power to prevent the Cheats that might be invented, and the dangers that might ensue. 2. This being a matter of Government, must be interpreted so, as to preserve the Government; and if Wives who were the half, and the more humorous half of Scotland, were allowed to abstract, all the other Remedies would be ridiculous, and they would debauch their Children, Tenants, and Servants, as well as influence their Husbands. 3. In all other Cases they were liable for their Wives, for Conventicles, by the said 5 Act for Popish withdrawing and Superstitions by the 104 Act 7 Pa. Ja. 6. For their Wives swearing and cursing, by the 3 Act Pa. 1 Sess. 1 Ch. 2. In all which Acts, the Parliament considered more the good of the Kingdom, than the advantage of private parties; and extensions are allowed in favourable Cases; and there is none more favourable than this, especially since the Women began the last Rebellion, and since the Council has ordained Men to be liable, the Country was become much quieter. 4. There being a communion of Goods betwixt Man and Wife, it was just that the Husband should be liable for his Wife, and so he should pay her Debts, whereof this withdrawing was one; and if he offer her to the Magistrates, and do not converse with her, he is to be free, and so he can only blame himself. The Council having Transmitted th●se Reasons to the King. His Majesty found that Husbands should be liable for their Wives; but Declared that Husbands who were loyal, and would take the Oaths of Allegiance and Test, should be favoured in the exacting of such Fines.  
THis Act is Explained in the 23 Act Par. 1 Ch. 1. and 23 Act Par. 1 Ch. 2. 
ACT 8.  And the exemption from Taxes here granted to the Senators of the College of Justice is also allowed to the Counselors of the Empire, Bocer. de Regal.. c. 2. and to the Counselors of France, Papon. l. 2. c. 11. and is extended in both these Kingdoms to their Widows, arg. l. 29. C. ad. l. ●ul. de adult. vid. Jac. Benium. privil. Juriscon. part. 3. n●m. 1.  
THis Act is Explained in the 16 Act Par. 2. Ch. 2. 
ACT 9    

King CHARLES' 2. Par. 2. Sess. 3.  
THis Act is Explained in Observations upon the 2 Act Par▪ 2 Ch. 2. 
ACT 1.   
THis Act ordains that no Tutors or Curators to be named or designed to any Pupil, Minor, Idiot, or furious person, 
ACT 2.  shall exercise their Office, till they first make Inventar of the Pupils Writes, Evidents, Means, or Estate, with the consent of the nearest of Kin, of the Father's side, and of the Mother's side, in manner specified in the Act, and if the nearest of Kin refuse to concur, for making Inventars', they are to be summoned by the Tutor for that effect, with certification that if they be absent, the Tutor is to make an Inventar before the Judge ordinary, to the end it might be known what the Tutor or Curator might be Charged with.  
Observ. 1. That since the Act only says, That no Tutor, or Curator of any Pupil, Minor, Idiot, or Furious-person, shall Exercise; It may be doubted, whether a Curator bonis datus, should be comprehended under this Act, because he may fall under none of these Denominations, though the Reason of the Law extend to him; as for instance, if a man should Tailzie his Estate to A. and failing of him to the second Son of B. which failing, to the second Son of C. If A. died, B. being alive, but having no second Son, the King might nominat a Tutor to manage the Estate, till it were known whether B. would have a second Son; and therefore it had been clearer to have said in the Act, That no Tutor nor Curator should Exercise, etc.  
Observ. 2. That the words, no Tutor or Curator named, or designed, might have been better expressed, by suppressing these words, named or designed, for that is not the proper words of Style.  
Observ. 3. That since the Act requires only the consent of the nearest of Kin of the Father and the Mother's side indefinitely; This is found by Decisions to be so Interpreted, as that two of the Father's side, and two of the Mother's side are only requisite, conform to the 35 Act Par. 6 Queen M. And though Tutor Datives were formerly granted summarily by the King in Exchequer; yet by this Act it is appointed, That the Craver of such Gifts shall cite the nearest of Kin upon both sides, that is to say, two of each, as has been also decided.  
THis Act is formerly Explained in the 14 Act Par. 1 Sess. 3 Ch. 2. 
ACT 3.   

ACT 6.  ALL Law having thought fit to use more Citations than one in matters of Importance. By our Forms before this Act, he who Raised a Summons, caused Execute the same by any person he pleased, who is called a Sheriff in that part; after which he did get an Act of continuation from one of the Clerks, and a second Summons; both which were called Act and Letters, and were Signed by the Clerk; but because that was expensive and troublesome; Therefore by this Act, these Act and Letters are taken away, and two citations upon the first Summons are declared to be sufficient: as also, because of old, the Execution of Summons did only bear, That the Messenger cited the parties within expressed, without mentioning the particular parties; therefore sometimes the Execution of another Summons at the same party's Instance, was cast on upon a Summons, which it may be, was never Execute; as for Instance, if I had raised a summons of Reduction against B. and another against C. the Executions against B. would have been sufficient against C. though C. had never been Cited, and so would have Interrupted a Prescription, or would have produced any other effect against him, which being alleged in a Case of Rowallans; It is by this Act appointed in times coming, That all Executions of Summons shall bear expressly, The Names and Designations of the parties, pursuers and defenders, and that it shall not be sufficient, that the same do relate generally to the Summons, otherwise the Execution shall not be sustained. And though it was alleged, that this was only to hold in Cases of Prescription, but in no other Case; yet it was found to extend to all Citations indefinitely; and therefore a Citation against Mr. James Alexander, having no Designation, but Husband to such a Woman, and bearing only relation to the Letters within-written, was not sustained; but yet the Lords thereafter upon the helping the Execution, allowed the same, the Messenger having abidden by the Execution.  
IT is fit to know that there are three Seals in Scotland, 
ACT 7.  the Great-Seal, Privy-Seal, and Quarter-seal; The Great-Seal is properly designed to be appended to heritable Rights, and the Privy-Seal for Movables, and the Quarter-Seal is but the Testimonial of the Great-Seal, and generally it is appended to Papers that are subservient to heritable Rights, such as Precepts of Season, Presentations to Forefaultries, etc. The Chancellor keeps the Great-Seal, The Lord Privy-Seal keeps the Privy-Seal, and the Director of the Chancery keeps the Quarter-Seal; for as the Quarter-Seal is but a Seal subservient to the Great-Seal, so the Director of the Chancery, is an Office● depending upon the Chancellor.  
The Servants of the Chancery, and Privy-seal Office, having been in use to give out the Papers that were to pass their Registers, before they put them in a Minut-book; so that such as desired to know what passed those Seals, could not know the same; therefore they are by this Act ordained to Registrat all Writs that pass their Office, before they give them out, and to make a Minut-Book.  
Nota, That in the Chancery-Chamber there are two kinds of Registers, one of Parchment, for Charters, and such heritable Rights, and other two in Paper, one for Temporary Rights, such as Gifts, Pensions, etc. In which likewise, Adjudications, and Comprisings are included; For though these be heritable, yet they are but Temporary Rights, being Redeemable; there is another Paper Register likewise for Retours.  
Of old, the precept of Season did pass the Quarter-Seal, But because that was expensive and troublesome, therefore they are now ordained to be engrossed in the Charter, and so pass the Great Seal only.  
By this Act likewise; Charters which were formerly in a large Skin of Parchment, are by this Act ordained to be Written by way of a Book, that they may thereby be the more commodiously Read, the Line being very much shorter in the one than in the other.  

ACT 8.  BY an old Custom in Scotland, Burgesses might have arrested Strangers, if they found them within their Burgh, till they fold Caution to pay them what was due; But by this Act, this is Restricted to Horse or Man's Meat, Abuilyiments, or other Merchandise, for which they have no security; which Act was found not to extend to such as lived upon the Borders of either Kingdoms. The Custom having been amongst the Borderers of each side, to cause one another find Caution, judicio sisti & judicatum solvi, lest otherwise the English might have drawn the Scots to London, or the Scots the English to our Session, Laws unknown to either; and therefore since the English continued this Custom after this Act of Parliament, it was fit that the Scots should have the like privilege of arresting such as dwell in England, January 13. 1676. Bell contra Robertson; and it was found by the Council, that the same Custom had been, and therefore should be allowed to Sheriffs, and other Magistrates without Burgh, so that the Sheriff upon the borders may arrest any Englishman till he find Caution judicio sisti & judicatum solvi.  
By this Act burgh's of Regality and Barony, are discharged to arrest, or Incarcerat any person who are not Burgesses, or Inhabitants in their burgh's for any manner of Debt, which seems to imply that they may arrest their own Burgesses, who are Inhabitants: Likeas de facto, they use to arrest such. This Act having Discharged all such arrestments, except for Horse or Man's Meat, Abuilyiments, or other Merchandise; The Lords February 22. 1677. Found that a Merchant could not arrest a stranger within Burgh, until he should find Caution to answer as Law will, for payment of the price of a Bargain of Victual, which had fallen to the said Burges as a part of his Father's Stipend, and consequently was of the nature of other Ferms, though it was alleged, that this did fall under the word Merchandise; and that Corn so falling to be due, might as well fall under this Act, as a Merchands Shop falling under Executry or Legacy.  
THis Act Ordains that no person shall Ordain, or be Ordained Ministers, 
ACT 9  except in the way prescriv'd by the present Government of the Church, under the pain of Banishment and Confiscation, and whosoever shall be married within this Kingdom, by the foresaid persons; or any not authorized, they shall amit and lose any Right or Interest they may have by that Marriage, jure mariti vel jure relicti, and that by and attour the penalty contained in the Act 1661. which is the 34 Act Par. 1 Ch. 2.  
Upon this Act His Majesty having Gifted the jus mariti of Hume of Kimmorghame, who had Married the young Lady Aiton, and a Declarator being pursued at the Donatars Instance· It was alleged, That first, The person who Married them had a Licence from the Archbishop of St. Andrews to Preach. 2. That the jus mariti was not declared by this Act to fall to the King, but only that the Husband had amitted the same; and that the King can have Right to no Confiscation, except where the same is expressly declared to belong to Him by the Statute, which inflicts the Confiscation. To which it was answered, That as to the first, no man could Marry any within the Paroch of any Minister, without leave from that Minister, who could only understand whether the parties might be Married lawfully; nor is the being ordained a Presbyter sufficient, since that gives only power to Preach, but not to Baptise, or Marry; Marriage especially requiring Proclamation of Bonds, which is de officio Parochi. To the second it was answered, that by Law all Confiscations cedunt fisco, whether the Act appoint so or not, this being the very nature of Confiscation, as is clear by Peregrin. de jur. fi●●. lib. 4. cap 8. num. 9 For cui competit accusatio, ei desertur poena; nam poena est effectus tantum accusationis; and Penalties being introduced in sol●●ium ejus cui fi● injuria, that should belong to the King, to whom the Injury was done. 2. The design of the Act was to punish such as Transgressed, and contemned the Government of the Church, whereas it were no punishment for the Husband to lose his jus mariti, if the same fell to the Wife. 3. If it fell to the Wife, she was uncapable of it, being in the same Delict. 4. Nothing by our Law can subsist in the person of the Wife; and therefore if the Husband do Renounce his jus mariti in favours of the Wife; it does by our Law return to the Husband. 5. If this were allowed, not only might the Wife in other Cases, and particularly in this be Rewarded for Transgressing the Law, since for Marrying irregularly, she would have ●●ight to the jus mariti of her Husband; but this would prompt all humorous Women to Marry irregularly, that they might get a jus mariti, and Administration of their Husband's Estate, and Dominion over him. 6. If this were allowed, the Husband's Creditors might be easily cheated, for they might Marry disorderly, and so their Creditors could have no Right to the jus mariti, and this would open a Door to those Frauds, against which our Law has so seriously guarded.  
It may be doubted from these words of the Act, Whosoever shall be married within this Kingdom, that such as are Married without the Kingdom, incur not this Penalty, though they should go upon Design, which if it were allowed, would frustrate absolutely the Act, for the Transgressor's might still go over the Border and be Married: and by the said 34 Act Par. 1. All persons having their Residence in Scotland, are discharged to get themselves married in England or Ireland, without Proclamation in Scotland; and since the Law looks upon actus elusorios, as inefficaces; so that if a man should go out of Scotland to shun a Citation, to the end another Compriser may be preferred, coming back after he is Cited by the first upon sixty Days, to the end the second may Cite him upon a shorter time, and so be able to lead the first Comprising, the first Citation would be preferred, and consequently it were unjust that this which is a greater Collusion should be allowed.  

ACT 10.  THis Sumptuary Law against Apparel is restricted, and Explained by the 3 Act Sess. 4. of this Parliament, and the whole Act is now in Desuetude.  

ACT 11.  THis Act is Explained in the 6 Act Sess. 2. of this Parliament.  

ACT 12.  THis Act is Explained in the 17 Act Par. 1 Sess. 1 Ch. 2.  

ACT 13.  THis Act is Explained Act 4 Par. 3. Q. Marry.  

ACT 14.  IN all Retoures it is usually expressed, whether or how the Lands are in his Majesty's Hands, as if they be in his Majesty's Hands, by virtue of Ward, the Retour bears it, but since the Retour did not use to bear the Taxed of the Marriage, or of the Feu cum maritagio; Therefore this Act appoints these to be expressed, and the reason why I think these were not expressed formerly, was because Taxt-Ward was a very late invention, and Lands holding feu cum maritagio is a very extraordinary thing, and so the inquest took no notice of either.  

ACT 15.  THis Commission for Plantation of Kirks differs nothing from the Commissions given by the other Parliaments, but only in that the Power whereby Titulars were forced to sell to each Heretor his respective Teinds is only to last for three years after this Act, so that all that great design ends here, except it be revived by the next Commission; but if the impediment during that time, flow from the Titular by reason of his Minority, or other inability, in that case the Heretor who offered to buy his own Teind, is to have place to buy his Teind as soon as the impediment is removed; but the Act does not express within what time: and therefore it would seem, that except the Heretor offer to buy during the Minority, and did really renew the offer to buy, immediately after the Minority, or inability was over, he cannot have place to buy. It is also declared, that if the Heretor be Minor, and his Tutors neglect to buy his Teinds, the Minor shall have action for 2 years after his minority to compel the Titular to sell them; but the Act is ill conceived, not mentioning Curators; but the giving power to buy after minority, includes both; but it may be doubted whether this should extend to Idiots and fatuous persons; or where there is tutor bonis datus ob non existentiam haeredis: and it seems the liberty to buy, should be extended to their Heirs for two years after they succeed, or two years after furious persons Reconvalesce.  
THe King in anno 1669. by a Commission under the Great-Seal, 
ACT 16.  did empower Noblemen and others to Regulat the Judicatures; and these Regulations set down by them, are here Ratified: But it was objected, that this could not have been done in Law, because by the Institution of the College of Justice, and particularly by the 93 Act Par. 7 Ja. 5. The Session has power to make sick Acts, Statutes and Ordinances, as they shall think expedient for ordering of Processes, and hasty expedition of Justice: And it was thought strange how Noblemen and Gentlemen, who understood not Forms of Process, could Regulat incident Diligences, and the ordinary Terms in Reductions and Improbation, which with many other things specified in these Regulations, were so much matter of Form, and were so little to be known by the strongest Reason that the greatest Lawyers did ofttimes understand less of them, than the ordinary Leaders of Processes.  
The first thing in these Regulations is, the Roll in which all Causes are to be taken up, and are Ordained to be Discussed according to the Dates of the Returning of Processes; which Roll was formerly in use, though by the 12 Article it was here added, That if any Cause should be called by anticipation out of its due place, the Pursuers Advocate might refuse to insist, or the Defenders Advocate to answer; and upon this Article it was, that the Lord Almond appealed to the Parliament; because in the Action at Dumsermlings' Instance against him, there having been a Debate in the Outter-house, Reported to the Lords, they had ordained the Cause to be summarily heard before themselves in praesentia; Whereas by the 5 Article, where the Lords upon intricacy, Ordains a Cause to be heard in praesentia; the Process should have been insert in the Roll of the Inner-house, according to the Date of that Deliverance; which Article being controverted: It was alleged that by this Article, Almonds Procurators were not obliged to Debate. To which it was answered, that though where a Cause is Ordained to be Enrolled, it must be heard according to that Date; yet that did not hinder the Lords to call in any Cause for clearing the Terms of a Debate in the Outter-house, Reported to them, before they give their Interlocutor therein, which, as needing no Inrolment, falls not under this Article▪ and this Course of Calling in Advocats summarily, for clearing some Points, is ordinarily used without Inrolling Causes in the Inner-house, Roll; but after a Cause is once Enrolled in the Inner-house Roll, it must be heard according to its Date.  
The Council sometimes likewise when they sustain themselves Judges Competent to Riots, do, if any Defence be proponed before them in point of Right, remit the matter of Right to the Lords of Session; but ordain it to be discussed summarily, without attending this Enrolment, to the end, that when the matter of Right is Discussed▪ they may know how to Judge the Riot.  
As to the 16 and 17 Articles, Vide Observations upon the 9 Act Sess. 3 Par. 1 Ch. 2.  
By the 22 Article, it is appointed, That the Advocate who Returns the Process shall give out all the Papers, whereupon he resolves to found his Defences; which was done to prevent the Pursuers being forced to take a time to see those Papers, upon which the Defence was founded; but this was found unpracticable, because the Defenders Advocats knew not what would be found Relevant, or not; and therefore the Defenders Advocate does now propone his Defence, and if it be found Relevant, he takes a Day to prove it as formerly.  
The Difference betwixt Outter-house and Inner-house Advocats, which was appointed by the Regulations is omitted in this Act, which Confirms the Regulations without that distinction.  
Before this Act in Incident Diligences, four Terms were allowed for producing the Writs, which were accidentally craved to be produced: The first was Letters, with Certification, that if the haver's produced not, other Letters would be direct against them, Charging them thereto simpliciter. 2. That Letters of Horning would be direct. The third was Horning. The fourth was Caption. But by this Act, the first Diligence is appointed to be Horning. The second Caption, which may seem too short; for it is hard that third Parties should, without any previous advertisement be Charged with Horning; for though no Escheat will fall on this Denunciation; yet the Rebel will upon this Denunciation be debarred, ab agendo, beside other inconveniencies.  
As to the Regulations concerning the Justice-Court, it has been doubted, whether they extended to Justice-airs, or Circuit-Courts; and therefore it was doubted, whether a Citation given to a Pannal who is in Prison, might be given upon fewer than fifteen days in a Justice-air, and the Judges inclined to think, that these Regulations extend to Justice-airs, as well as Justice-Courts, as to all the Articles here expressed, since Orders are given by the Parliament for regulating Justice in these Regulations, which show the Parliament designed to extend them to both.  
From these words in the ninth Article, That the Chancellor of the Assize mark how every individual Assizer shall Vote whether he Condemns or Assailyies, it clearly follows, that no Assyzer in Criminals may be non liquet: and if this were allowed in one, it might be in all; & because this was not necessary formerly; Therefore by the 63 Act Par. 8. Ja. 3. It was ordained that when a Summons of Error was raised, each Assizer was to set down who assoilyed, and who Condemned; but because they might forget, or for fear of punishment, might be unfaithful in this; Therefore this Act appoints, That in the first Verdict it shall be marked who Condemned, and who assoilyed.  
Albeit this Act appoints that the Chancellor shall mark whether every man assoilyes or Condemns: Yet it is thought the omission of this would not annul a Verdict in favours of the King, that being only introduced in favours of the King, to the end that His Majesty's Advocate may be instructed whom to pursue in a Summons of Error, when a party is wrongously assoilyed.  
By the 11 Article it is appointed, That when any Summons of Exculpation is Executed against any party, that at the same time the Names of the Witnesses and Inquest should be given, to the end the party may know what to object against the Witnesses: Upon which Article it was alleged that when an Exculpation was raised against the King, the Witnesses Names should be given to his Advocate likewise; and which the Justices found to be necessary in March 1680. For the Act being general as to all; and there being as great reason that the King should know those who are to be led against Him, as any private party, He ought to have the same measure: and whereas it was objected, that it were a very severe thing, that a poor Pannal might not lead any Witness, even during the Debate, though his Name had not been given in List; yet this has no weight, since the Act is so clear in general Terms as to all: and it may seem as unreasonable that the King should not be allowed to lead any Witness to prove a Crime, if he find him in the Court the time of the Debate; for the Pannal may much better, know who can prove his Defence, since he behoved to know them, if they were present, than the King's Advocate can know who were present when the Crime was committed; and though there may be some inconvenience in this, for one particular Pannal, yet in the general there is great advantage in this to Pannals, the King being thereby forced to give in the Names of his Witnesses, so that the Pannal may not only know how to object against them, but even how to practise them: and whereas it may be objected, that by this procedure there behoved to be progressus in infinitum, since the King might Cite Witnesses to cast the Pannals Witnesses; and the Pannal behoved therefore to be allowed to cast the King's Witnesses, and to have Citation for that effect. It is answered, that this might as well be urged against all Reprobators; nor does this hold here, for the Judge should not allow such Citations, save one to each party. Because Messengers in Executing Criminal Letters, gave sometimes only copies of the Libel itself, and yet returned Executions to His Majesty's Advocate; that they had likewise given Lists of Assizers and Witnesses▪ Therefore the Justices declared in February 1681. by an Act of their Sederunt, that if the Pannal should produce a Copy under the Messenger's hand of the Libel, except the List of the Assizers and Witnesses Names were upon the same Paper with it, they would not sustain the Execution, though bearing That Lists of Witnesses and Assizers were given.  
THis Act is Explained in the 1 Act 1 Par. Sess. 3. and 7 Act Sess. 2 Par. 2 Ch. 2. 
ACT 17.   
COmprisings were at first Invented to pay Debt with a suitable proportion of Land, 
ACT 19  and the Sheriff was to adjust the sums due with the Lands Comprised; but thereafter great Estates being Comprised for small Debts, the Parliament thought fit by this Act to Ordain, that for the future, not a Messenger who was Judge in Comprisings; but the Lords of Session should by a Process before them, Adjudge as much of the Debtors Lands to the Creditor as would satisfy his principal Sum and Annualrent, with a fifth part more, because the Creditor was forced to take Land for Money, whereas by the Common Law, aliud pro alio invito creditore solvi nequit. And albeit this Act expresses only that this fifth part shall be beside the Composition to the Superior, and Expenses of Infeftment; yet certainly the Creditor must likewise have all the Expenses bestowed upon the Process; for as this is reasonable in itself, so that expenses tends to the procuring of the Infeftment.  
Observ. 1. This Act came in to the Parliament simply in these Terms, and the equity of it was pressed from the Custom of other Nations, and particularly the Common Law, where the Praetor did adjudge the Debtors Land proportionally to the Debt; but it being strongly urged by the Lawyers, Burgesses and other Members who were Moneyed Men, that it was most unreasonable to force the Creditor to take Land, except the Debtor should produce to him a good Progress and Security; for both, to be forced to take Land, and yet to want a sufficient Right thereto, was altogether unreasonable: Therefore the Parliament ordained, that if the Debtor did not compear and produce a sufficient progress, and Renunce the Possession, the Debtor might Adjudge the whole Estate as formerly he Comprised it; and this has almost Evacuated the whole Act; for the most of Debtors are unwilling to produce a Progress, and renunce Possession; and therefore most Lands are now adjudged as they were formerly apprised; and in December 6. 1681. It was found that an Adjudication led for a fifth part more in absence of the Debtor, was null; since the fifth part more was only to be given, where the Creditor compeared, produced a Progress, and Renunced; albeit it seems that this alternative being introduced in favours of the Creditor, it ought to be optional to him to choose either.  
Observ. 2. That the Legal in these Adjudications is only five years, whereas it was seven in Comprisings, for the danger being less▪ because of the said Commensuration, it was just that the time for Redemption should be shorter; and though it be not expressed that the foresaid five year shall not run against Minors, and that it may seem it should not run against them, in respect of the short commensuration, and that it seems unreasonable, that a Creditor being forced to take so little Land, and should yet be forced to be unsecure during a whole Minority, yet the said Legal in Adjudications will not run against Minors, for Adjudications having come in place of Apprisings, are to be regulated by the same Rules, except where it is otherwise provided by express Law; and therefore Adjudications cannot be led upon Bonds, bearing Requisition, except Requisition be first used, this being formerly necessary in Comprising●, February 11. 1680. Gordon contra Hunter: albeit it was there alleged, that an Adjudication was a more solemn Action, (requiring previous Citation of Parties) than a Comprising, and so there needed no Requisition in Adjudications, as in Apprisings.  
Observ. 3. That where Land is Discerned proportionally to the sum, with a fifth part more, the Creditor is to possess the Land in satisfaction of his annualrent, during the not Redemption, without being liable to Restitution, or Compt and Reckoning; and therefore when the Act does thereafter say, that he shall be paid of his principal sum and annualrent, that must be understood in the Terms foresaid, viz. that the Rent of the Land shall be allowed for his annualrent, without Restriction.  
Observ. 4. If the Creditor acquire once Possession, he cannot thereafter use personal Execution; which I think should be understood only where the Debtor compears, both because this Clause is adjected to that part of the Act which presupposeth Compearance; and before the Clause punishing his absence; and because it were unjust that a Debtor should have advantage, when he will not consent. It may be also doubted, whether though the Debtor compear, he may be free of Personal Execution, when the Land adjudged is not able to pay the sum, according to the Terms of the Act; for the reason of the Law ceaseth, viz. That a man should not use Execution, when he has attained payment: and thus albeit of old in Comprisings, the Compriser could not use personal Execution, where he was in possession, except he Renunced the same, July 23. 1633. yet where he had not attained the possession, albeit the Comprising was expired, he might have used personal Execution by Horning and Caption, though not by arrestment and poinding, December 7. 1631.  
Observ. 5. That since this Act Declares, that neither the Superior nor Adjudger shall be prejudged by this Act; it clearly follows, that the Superior may in this case, as in Comprisings, Redeem the Adjudger by payment of the sum, it being unjust that a stranger Vassal, should be forced upon him, when he is content to pay what is due.  
Quaritur, Whether albeit by this Act, no Comprisings can be led of Lands, not already Comprised; if yet Adjudications may not be led, even where Lands are formerly Comprised; for this is not expressly discharged: and this seems to have been introduced, in favours of the Creditors, who may make their own Election, and I think they may.  
Whereas it is Declared, That the Superior and Adjudger, shall be in the same case after Citation in the Process of Adjudication, as if Apprising were led, and a Charge given. It may be doubted, how a simple Summons can be equivalent to an Apprising and Charge; for if that were sustained, he who had raised the first Summons would be preferred to him, who having raised a posterior Summons, had got the first Decreet; because the first Summons would be equivalent to an apprising; and consequently to a Decreet of Adjudication: But the Lords have very justly found that the meaning of this Clause is, That the first step in an Adjudication shall be preferable to the second step in a Comprising, and so forth: But not that the first step in an Adjudication shall be equivalent to a complete Comprising: and yet it still remains, that a Summons in an Adjudication is equal to a Denunciation in an Apprising; for though a Denunciation be the more solemn Act, yet a Summons publicly called in the House, does likewise make the Diligence very notour.   

King CHARLES' 2. Parliament 2. Sess. 4.  

ACT 1.  THE King having Designed to improve Salt made in Scotland, whereby poor people were maintained, and the Money kept in the Country, did buy the Salt made in Scotland, and ordain it to be sold out at reasonable Rates, which was called the pre-emption of Salt; but the Servants and Officers employed in venting the Salt, having taken exorbitant prices, as was alleged, and remote places, such as Galloway and the Highlands being ill furnished, since it was difficult to keep Storehouses every where, and many fearing, that this might be a preparative for the pre-emption of Coal, Corn, etc. His Majesty was therefore pleased, for removing all such jealousies and prejudices, to condescend by this Act, to discharge the said pre-emption, and all pre-emption of Salt in time coming, but to give some advantage to our own Salt above foreign Salt, our own Salt is declared free of all Excise, and imported Salt is to pay forty shilling upon every Boll.  

ACT 2.  THis Act is Explained in the Observations upon the 7 Act 3 Sess. Par. 1 Ch. 2.  
Nota, That before this Act the King had right to twenty shilling of Custom for every Tunn of imported Beer, by the 179 Act Par. 13 Ja. 6.  
MAny Noblemen and Gentlemen having been engaged for Debts contracted by our late Rebellious Parliaments and Committees, and not being able to shun these Debts, 
ACT 4.  because they had given their private Security for the same; the Parliament 1661. and posterior Parliaments suspended Execution upon them, but could not in Justice take away the Debt; Therefore for payment of this Debt, an Imposition was granted upon Tobacco to be employed for payment thereof, as being the most unnecessary Commodity that was imported; and yet this being complained of as a Monopoly, or at least a great Imposition upon a Commodity, which though at first useless, was now by Custom necessary; His Majesty did therefore Discharge the said Imposition, and allow the importing of Tobacco in all time coming, free of all Custom and Imposition, except the ordinary Custom.    

King CHARLES' 2. Parliament 3.  
AFter many Draughts of an Act to secure the Protestant Religion, 
ACT 1.  wherein His Royal Highness allowed all Liberty and Encouragement, many of them were found great snares to the Subjects; and thereupon it was remembered, that in anno 1633. King Charles who was a very zealous Protestant, and died a Martyr for our Church, resolved to make new Laws for its Defence; but it was found that the Laws made by King James Sixth, were so full that nothing could be added; and that was very probable, for that King being a most Learned and Zealous Protestant, and the dangers arising to the Protestant Religion, being then so Recent and urgent, it cannot be thought that any thing would have been omitted; and therefore as that Parliament satisfied themselves with a general Ratification of all former Acts, so did this Parliament; but to show their earnestness, this Act appoints the old Laws against Popery, and for securing the Protestant Religion, to be put to Execution, according to the Tenor and proport of these Acts; which Clause is here added to this Act, and is not in the 4 Act 1 Par. Ch. 1.  
THis Act is Explained in the Observation on the 8 Act 1 Par. Ja. 6. but more fully in my Jus Regium, 
ACT 2.  Cap. The Right of Succession Defended: and it is remarkable, that it was passed without a contrary Vote, or the least Objection; only most thought it so just, that it was unnecessary, and really it had been so, if some in England had not controverted it.  

ACT 3.  THis Act Discharges freequarter and Localities; but because some pretended, that by this Act they were free from all necessity of carrying Corn, or Strae, or Grass; whereas, if this were true, the Soldier's Horses had been made unfit for Service, by such Carriages, and the Troopers and Dragoons might have been easily Murdered, whilst they went out singly to bring it in, therefore by Act of Council, this is fully regulated.  

ACT 4.  THere having been a full Debate before His Majesty, how far Masters were answerable for their Tenants, the Parliament to prevent the like for the future, made this Act, being fully convinced, that Masters in Scotland could command their Tenants and Servants; suitable whereto, there are many old Statutes, Commanding Masters to present them, and finding that without this, the Peace could not be secured; and upon the event it is found, that this has secured the Peace for Tenants and Servants, knowing that their Masters would find out their Crimes, which Sheriffs and others could not know; and that they could not get Service, or Land any where; If they were disorderly, they have conformed, and this hath Restored Masters to the just Influence which our Predecessors had over their Tenants and Servants, and which they lost by their Fanaticism, by which they came to depend only on their Ministers; and minding more Conventicles than their Work: and in which extravagancy, they were so far advanced, that they would not see themselves till they were secured, that they should be allowed to go to these: nor is the Master tied by this Act to any hard thing, since by presenting them to Justice, or by putting them out of his Land, or out of his service, he is free from all danger, and this is in his power; as also to secure him yet further, it is Declared, that he may break their Tacks; and that if any Master take them who are put away, he shall be liable unto three years' Duty.  
It having been also Debated before the King, that there could be no Deputs named, for putting the Laws against Ecclesiastic Disorders to execution, within the bounds of heritable Judges; therefore His Majesty's Power is Declared as to this Point, by the Clause of this Act; but this is now unnecessary, because by the 18 Act of this Parliament, His Majesty's cumulative Power is Declared as to all points.  
IT is very observable that the longer the World lasts, Probation by Witnesses-lessens alwise in esteem, 
ACT 5.  because men grow alwise more Wicked. In our Saviour's time, out of the mouth of two or three Witnesses, every word was to be established: Thereafter by our Law, and by the Laws of other Nations, nothing above an hundred pounds could be proven by Witnesses. And albeit of old the affixing of a Seal was probative without a Subscription or Witnesses: but as by former Acts, the Subscriptions of Parties is Declared requisite: So though formerly the Designing the Witnesses, was sufficient, although they did not Subscrive: Yet by this Act no Writ is Declared Probative, except the Witnesses Subscrive; and without their Subscriving, the Writ is Declared null: But the Act of Parliament does not condescend, whether this nullity shall be receivable, by way of exception, Or if it must require a Reduction: But I conceive it must be null by way of exception, since the Law hath Declared such Papers null, and the want of Witnesses appears by production of the Paper itself.  
The second thing Established by this Act is, that no Witness shall sign as a Witness to any Parties Subscription, except he know the Party, and saw him subscrive, or saw, or heard him give warrant to the Nottar, or touch the Pen; The occasion of which part of the Act was, among other remarkable Cases, that a Gentlewoman pretending that she could not Write before so many Company, desired to sign the Paper in her own Chamber, whereupon she got the Paper with her, and at her return brought it back subscriv'd, and she thereafter raised a Reduction of the same Paper, as not truly signed by her; and though this should hardly have been sustainable at her own instance, because she was heard to own it by▪ the subscriving witnesses, and the whole company: yet this exception of dole could not have secluded her Heirs or Executors from reducing it as said is. If witnesses without seeing a party subscrive, or giving warrant to subscrive, shall subscrive as witnesses, they are declared to be punishable as accessary to Forgery; which quality some think was added to seclude the punishment of Death, it being, as may be pretended, too severe to punish by Death, that which is the effect of mere negligence, and unto which very many fall through negligence; yet our Law knows no difference betwixt accessories and principals further than ex gratia; accessories may sometimes find a mitigation of the punishment. I conceive also, that a party signing as Witness, without seeing the Paper subscriv'd, should be liable to a third party who got assignation to that Paper in Damnage and Interest, if it be Reduced ex eo capite, since he was a loser by his negligence: But quid juris? 1. If the party himself, to whom the Paper was granted, were pursuing such an action for Damnage and Interest, since he should have considered his own security, and the Witnesses might have trusted to his exactness. 2. Quid juris? if the Witness heard Command given to one of the Nottars, since the Act says, That unless they heard him give Warrant to a Notar, or Notars, and touch the Notars Pen; and yet even in that case, the Paper may be null, because there was not a Command given to both the Notars; and a third party may thereby lose his Right▪ 3. It may be doubted if upon a Notars ask, if the party will warrant him to subscrive, the party do give a Nod, whether that Nod will be equivalent to a Warrant, and free the Witness, who thereupon subscrived as Witness? And it seems it should; for the Act says, except he saw or heard him give Command: and a man cannot see a Warrant otherways than by a Nod; and nutus was sufficient by the Civil Law to infer a Mandate.  
The third point in the Act is, that albeit in all Foreign Nations, the Subscription of a Notar proves in all Obligations; (for there the Notar keeps the Paper signed by the Party, and gives only a Duplicat signed by him) and albeit in our Law, a Notars Subscription did prove in all Instruments, such as Seasins, Intimations, etc. If the Witnesses were insert, and designed, though they did not at all subscrive; yet by this Act the Witnesses must likewise subscrive, which is another argument to prove, how much the Faith to be given to men is now lessened: But it is fit to observe, that other Instruments taken by Notars, continue in the former condition, and need no subscriving Witnesses; though for cautiousness, all Witnesses in any Instrument do now Subscrive.  
Nota, That the Civil Law called all Obligations Instruments; but we call only Acts of Notars Instruments.  
The fourth Point in this Act is, That all Executions of Messengers upon Inhibitions, Interdictions, Hornings, or Arrestments, shall be null, if they be not subscriv'd by Witnesses; and these were expressed, because they are Executions of great Importance; and yet it seems that Executions of Comprisings and Adjudications are of as great Importance as any of these; and yet it is not required by this Act, that Executions of Comprisings and Adjudications should have subscriving Witnesses; and a Reduction being raised of the Execution of a Comprising, because there being but two Witnesses expressed in the Execution; one whereof did expressly deny, that ever he was witness in such an Execution, and so the same became null, as wanting two Witnesses: To this it was answered, that the Deposition of a Witness, denying that he was present upon the Land the time of the Execution, was not sufficient to destroy an heritable Right of so great importance, as this Comprising was; for this Deposition after so long a time, could amount to no more than a non memini; and the reason whereupon this Statute is founded, appears by the Narrative to be, because the Witnesses may by their forgetfulness easily disown their being Witnesses; and many men are apt to forget such Circumstances, and to deny that ever they have been in such a Place or House, until the same be brought back to their memory, by other very remarkable Circumstances, which could not be done here, because the Messenger and the other Witnesses were both Dead. 2. The Deposition of one Witness denying his being present, should not infer a nullity of the Comprissing, since the loss of the whole Executions would not infer the same, after so long a time as has been frequently decided. 3. If this were allowed, it should be in the power of every single Witness in an Execution of a Comprising, or Adjudication, which are now the Foundations of the most of our Rights, to destroy and overturn the same for Money or Prejudice. 4. No singular Successor buying a Comprising, could be secured; and if these Executions had been thought of such importance, this Statute had required subscriving Witnesses. For a Comprising is of far more consequence than an Arrestment; The one relating to an Heretable, the other to an Movable, and very Temporary Right. 5. No man could with a sufficient causa scientiae, Depone that he was not upon the Ground of the Lands of such a Barony, except he knew every bit of the March of the Barony, for that Execution might have been used upon the very remotest corner of it.  
The last Branch of this Act is, that no Execution whatsoever shall be sufficient to interrupt the Prescription of heritable Rights, unless the same have subscriving Witnesses; and by this, we see what Care our Law has taken to preserve Prescriptions: and for the same reason it is appointed by the 10 Act 2 Par. Ch. 2. That all Citations that shall be made use of, for Interruptions shall be renewed every seven year; and because of this Clause in the Act, it is advisable, that all Executions in Adjudications, Comprisings, Molestations, and generally in all Actions, relating to real Rights, have Subscriving Witnesses, though these be not Expressed, because they may be made use of as interruptions in other cases. vid. observe. on the said Act.  
THis Act concerning the Test, is so exactly and universally known, and all objections against it have been so fully cleared, 
ACT 6.  that it is unnecessary to Write any Observation upon it:  
BY the 2 Act of the 1 Par. Ch. 2. 
ACT 7.  It is Declared that the nomination of the Senators of the College of Justice did ever belong to the King. And His Majesty and His Predecessors have ever been in use of appointing the times in which they should sit, and Judge for him; and therefore His Majesty's Royal Brother, finding, that many Members of Parliament inclined to want the Summer Session, he allowed the Overture to be brought into the Articles. It was likewise proposed, That there might be one Month allowed for the Summer, and four only for the Winter; for which it was urged, that this would save all the inconveniencies that could be adduced against the Summer Session; since therein Causes that could not well admit of delay, such as Suspensions, Remove, Actions upon Bills of Exchange, etc. might be discussed; but this was Rejected by Vote of both Articles and Parliament, as tending to as much Trouble and Expense as the Summer Session itself, without any considerable advantage. For the Liege's behoved to attend from the remotest parts of the Nation, and yet the whole time would be spent in useless preparations for Business the first fortnight; and in a dangerous hurry the last fortnight; by this Act then there is only one Session to be in the whole year, which is to last from the first of November, to the last of March inclusive.  
The Arguments adduced for this Model were first, That two meetings of the Session did encourage our Countrymen too much to litigiousness, who were naturally too much addicted thereto; whereas one Session might well enough end all our Affairs: and it was indeed observable, that to recommend this Overture, all possible dispatch had been made in the former Session. 2. That these two Sessions occasioned great Expense, since people behoved to come twice a year from the remotest parts of the Nation, most unnecessarly; for the Summer Session was spent in Preparation, or Hurry, as said is. 3. The Summer being the only time wherein Scots-men could have any pleasure, or could make any improvement by Building, Imparking, etc. The Summer Session did, without making us any Recompense, destroy both our own Pleasure, and the adorning of our Country.  
The Arguments for continuing the Summer Session as formerly, were  
1. The Session not sitting for seven Months, His Majesty's Authority during all that time, wants the support and assistance which otherwise it uses to have from the frequent attendance of the Nobility, the King's Officers, and others do meet frequently during the Session, because of the conveniency they have in attending their private Business. Whereas in this long Vacation of seven Months, they can hardly be brought together, and so want that Correspondence, Intelligence and mutual assistance which they have in time of the Session; and our Rebellions being ordinarily in the Summer time, because of the conveniency which Rebels have of lying in the open Fields, and of getting provision for their Horses, it would be much easier to suppress the same, when His Majesty's Authority is fully represented, and His Nobility and Servants fully conveen'd; a great instance whereof appeared in the late Rebellion of Bothwel-bridge.  
2. The Summer Session was very well contrived for the administration of Justice, because in the Months of June and July, such as have affairs in dependence before the Session, had then no Labouring at Home, those two Months falling very conveniently in betwixt Seedtime and Harvest, and we having formerly had the Month of March adjected to the Winter Session, that Month was taken from it, because it was a part of our Seedtime, and consequently to have it now a part of our Session, must be very inconvenient. 2. In those two Months, His Majesty's Subjects in the Isles, and remote Countries, can only come to get Justice administrated to them in the Summer, there being no passage from these places to the Session in the Winter time; or at least if they do come, they must stay the whole Winter; and in some years the storms are such, that there is no Travelling, even from nearer Countries, nor is the winter fit for old men Bishops, Clergymen, and such as are infirm to travel in. 3. The Season in these two Months, being very moderate with us, and the days long, much more Bussiness is dispatched, than in the Winter time: and there is far more conveniency of Informing, than in the cold and rigid Winter Nights, which puts men to great expense, and occasions many Diseases. 4. Though his Majesty's Subjects now procure Decreets, or get Bonds; yet the same being Suspended, they cannot be discussed for nine or ten Months; during which time also widows and Orphans starve; Masters cannot remove Tenants, because they Advocate the Cause; and Debtors become Insolvent; Creditors likewise being forced to use Adjudi●●●ions within year and day of one another, are altogether by the said long Vacation excluded. 5. Not only Business before the Session by this means, but even before inferior Courts are stopped; for such as are conscious to the injustice of their own cause, stop procedure there likewise by Advocations, which cannot be discussed for nine or ten Months. 6. Not only in these particulars; but in general, the course of Justice is stopped here: far contrary, not only to our conveniency, but to the Custom of all Nations, who allow in place of one, four or five Sessions. There being no Vacation in the world longer than two Months, except in Scotland, who now allow seven; during which time, honest men are Defrauded, Bankrupt, and violent Possessors are Indulged; Probation by Witnesses, and otherwise perish: and to be short, there is no face of Justice during that time. 7. As the Vacation is too long for the conveniency of the People, so is the Winter Session too long for the conveniency of the Judges, Advocats and other Members of the College of Justice, who must either destroy themselves by toiling too much, or the People's Business by their languid and negligent mannadgement thereof, it being undeniable that before the four Months used to expire formerly, all persons concerned did languish, weary, and wish for a Vacation. 8. The shortness of the time now allowed, forces the Judges to give shorter audience and to frequent the Side-Bars more than is fit.  
3. The want of the Summer Session destroys Trade and Commerce; Because 1. Merchant's cannot get in their Money, with which they should Trade, wanting the Execution of Law for so long a time. 2. There is now no Whitsunday Term, so that the Course of Money is stopped; and it is undeniable, that there are no payments now at Whitsunday; whereas we having had two Terms formerly, Whitsunday and Martinmas, there were very wisely two Sessions appointed, one in the Summer for those who did not pay at Whitsunday; and another in the Winter, for those who did not pay at Martinmass. 3. There being no concourse and meetings of the People for seven Months, there can be little Commerce: For all Traffic arises, and Bargains are made upon such occasions. 4. It is undeniable, that twice more Merchants have broke in those two years that we wanted a Summer Session, than in any six formerly; from which decay of Trade also arises a great loss to His Majesty in His Customs and Revenue.  
4. This want of the Summer Session is very prejudicial to the private Estates and Interests of almost all sorts of People: For, 1. There is alwise greatest consumption of Corn, Cattle, and all Products of the Nation, in more frequent and numerous concourse of People; and the greater the Consumption be, the prices rises so much the higher. 2. The Victual of the Northern Shires not being Transportable till April, because of the Storms, it was only vented during the Summer Session; and now the price of the Victual there is much fallen, and His Majesty's 〈◊〉 in those Shires much prejudged. 3. The Heritors of Store-rooms in the South and West are very much prejudged, since a great part of their Cattle, especially of the younger, was only vented in the Summer Session. 4. The Heretors in the Shires about Edinburgh are prejudged in every thing that is paid to them. 5. The half of the Town of Edinburgh itself is almost laid waste; Landlords having almost lost half their Rent, and the best Tradesmen running away to other Nations, because they are idle for seven Months here. By which also His Majesty is a great loser in His Revenue, that Town paying him more alone, than a sixth part of what is paid by all the Burghs-Royal in the Kingdom; and Trade by this extraordinary Poverty decaying in Edinburgh, which is the Fountain of Commerce, and the Staple Port of the Nation, it must proportionally decay in all the other Towns, since their Trade and Commerce depends upon it. 6. His Majesty's ordinary and additional Excise in Edinburgh, has very much decreased, and the Brewers are almost all broken within these two years, as the Tacks-men and Customers too well know: The Ministers Stipends likewise being paid out of the Annuities on House-Meals, they must likewise decrease as the House-meals do. Nor is the Town able to keep up the Company, nor to furnish His Majesty such assistance, as formerly it gave in the Rebellions at Pentland and Bothwel.  
As to the contrary Arguments, it was answered, that as to the first, Business did increase daily in all Nations, with the improvement of Land and of Trade, and the multiplying of Diligences, so that Processes could not be sooner ended than formerly, without deciding them more carefully. To the second, no man now needed to come till his Cause was called, because all Causes were decided in their course by a Roll, and so it was no matter whether he came Summer or Winter. To the third it was answered, there was more Planting and improvement in the Month of March, which is now lost than in both the Months of June and July.  
It may be doubted if the King can recall the Summer Session without an express Act of Parliament; and it may be urged that He may, since the Session is his own Court, wherein He does Justice to His People by His Judges; and therefore as any of His Majesty's Vassals may hold their Courts when they please, much more may His Majesty hold His. Likeas His Majesty has ofttimes by His Council, ordered the Session to sit when and where He pleased: And whereas it is pretended, that if this were true, Acts of Parliament in ●his case were unnecessary; and that such alterations have never been made without the Parliament. To this it is answered, That at first the Session was a Committee of Parliament; and so the Diets of Session behoved to be appointed by Parliament: and now likewise it is fit, that the Inclinations of the Subjects be gratified by such Acts, taking along their consent in a Case of so general a concern; but it does not necessarily follow, that all things that have been Established by an Act of Parliament at some times, can at no other time be ordered by His Majesty alone; for we see that there are several Acts of Parliament, Regulating Trade and Coinage; and yet it cannot be denied, but that Trade and Coinage are inter Regalia.  
ALbeit by the fourteenth Act 1 Par. Ch. 2. 
ACT 8.  The Excise is to be taken up by the Commissioners of the Excise, or Collectors appointed by them, and for whom the Commissioners are answerab●● and may be quartered upon for their Deficiency: By this Act, the grant of the Excise, which is to Commense from the King's Death, gives His Royal Successors only a Right to what the Drink Exciseable itself can yield, and so the Shires will not be obliged to burden their Land with Cess, for Deficiency of the Excise, as now they do.  
THis Act is formerly Explained in the Observations on the 47 Act Par. 11 Ja. 6. 
ACT 9   
BY our former Law, it was generally believed that all Widows had Right to a third of their Husband's Estates, 
ACT 10.  called with us a Terce, except the Wife had been expressly secluded by her Contract of Marriage, and that she had Right to her Jointure, and to a third of the superplus of any Land, wherein her Husband died Infeft: But in a Case betwixt Prestongrange and the Lady Craigleith, Debated in the Session immediately before this Parliament; It was alleged, that the said Lady, being competently provided by her Contract of Marriage to a great Jointure, she could not likewise have Right to a Terce, because primo, provisio hominis tollit provisionem legis; and therefore where a Wife is provided by express agreement, and the Provision acquiesced in by the Wife and her Friends, it is in the construction of Law reputed to be in full satisfaction of all she can crave, if the same amount to a third of all the Lands, which the Defunct had at his Decease. 2. This is Declared to be our Law, by the 16. cap. lib. 2. Reg. Maj. N. 6, & 10. And by Balfour in his Title of the Wife's Dowry and Terce: And by Craig lib. 2. Cap. 22. 3. By the Laws of other Nations it is clear, that where a Wife is secured by a Conventional Provision, she can have no Right to any legal Provision; This the French expressly determine, when they say, that a Wife having dotarium praesixum, cannot claim dotarium ex lege & consuetudinarium. 4. This Terce is the same in the Analogy of Law, that a Legi●tim, or an Aliment is to Children; but so it is that neither of these are due, when the Children are provided; and therefore the most that can be due in either Case is supplementum legittimae; the Law having only designed the rationabilis tertia: And there is no more due to our Queens by the 2 Act 1 Par. Ja. 3. Albeit these Reasons were thought very pungent, and tending much to the support of old Families, and to secure Men against the importunity of their Wives; yet because some positive Decisions had run in favours of the Wives, though abundantly provided; therefore the case was referred by the Session to the Parliament, and they by this Act ordained that in time coming, if the Wife be provided, though her Provision were never so small, she shall be excluded from a Terce, unless her Right to a Terce be secured to her, by and attour her particular Provision: But because this Act was not thought a Declaratory Statute, but a Regulation; therefore the Case depending was remitted back to the Session.  

ACT 11.  THis is fully Explained in the Obseru. upon the 16 Act 22 Par. Ja. 6.  
HIs Majesty having, by virtue of His Prerogative Royal, Declared by the 27 Act 3 Sess. Par. 1 Ch. 2. 
ACT 12.  The Sole ordering, and disposing of Trade with Foreigners; He did by Act of Council Anno 1681. Regulate the matter of Trade and Manufactories; which Proclamations are here Ratified, for a security to such as shall undertake Manufactories; and therefore it may be doubted, if His Majesty can dispense with any thing relating to Manufactory, since in this, third Parties have followed the Faith of his Majesty's Acts and Proclamations; so that His Majesty seems to be bound to them ex quasi contractu. It is declared by the last Clause of this Act, That no persons contraveening this Act, shall be liable to the Penalties, unless they be found guilty within three Months after the delation: Upon which Clause it was found, that the Offenders were free, though they had confessed their Contravention by their Oath within the three Months; because there was not a formal Sentence against them; albeit it was alleged that in confitentem nullae sunt partes judicis; and the King had done sufficient diligence; and the reason of the Act did only militat in favours of those, who where not obliged to Depone after so long a time; and the King could not be prejudged, where his Officers had done sufficient Diligence, for this in effect was a Prescription, which runs only against the negligent. Likeas in this Case, the want of a Decreet could not be opponed, since it was occasioned by a Petition, given by the Defenders craving a delay, with which the King gratified them: But yet the Council thought the words of the Act so positive, that they would not go over them; especially since the Clause did resolve in an Indemnity to People who might have, and did ordinarily contraveen by mistake, or through necessity, and all such Indemnifying Clauses should be favourably Interpreted.  
BY the 212 Act 14 Par. Ja. 6. 
ACT 13.  The Lords of Session can only be declined to Vote, or Judge in Causes belonging to their Fathers, Brothers, or Sons: But because the prohibition of that Act, was too narrow, and that the reason thereof did equally militat against all Judges; Therefore by this Act the Prohibition of the former Act is extended to degrees of Affinity as well as Consanguinity: As also to Uncles and Nephews, so that now no Lord of Session, or other Judge whatsomever is Capable to Vote where either the Pursuer or Defender is Father, Brother, or Son in Law to him, which is most just, since these may have an equal influence upon him, and sometimes greater than those formerly Discharged.  
It may be doubted whether this Act should extend to Cases carried on in the Names of Confidents and Trusty's, for the behoof of the Persons Comprehended in this Act; and it seems rational to extend it; for a Cause cannot so much be said to be his, in whose name it is pursued, as the persons to whose behoof it is pursued: and if this were otherwise, the design of this excellent Act might be altogether evacuated: But yet I remember that the Earl of Rothes in Exchequer, gave by his vote the gift of Nonentry of the Estate of Levin to Sir William Bruce, though it was alleged that it being to his own behoof, he could not jus sibi dicere. To which it was answered, that he did not Vote for himself, but that he was necessitat to sit to make up a quorum, because there behoved still to be such a number of Commissioners of the Thesaury present in Exchequer, as sine quibus non.  
AS Laws do ordinarily show the Genius of the Nation; 
ACT 15.  so do they likewise show the Genius of the Time wherein they are made; and this Law was occasioned by a dreadful Principle, whereby the fanatics had declared, That it was lawful to Kill all who Served the King; and though none were punished in Scotland for mere principles of Religion: Yet it is very lawful to punish those who maintain Principles which tend necessarily and naturally to the raising of Rebellion, or committing of Crimes: Whereof this and the 2 Act 2 Sess. Par. 1 Ch. 2. are just Instances.  
It may be doubted, whether Judges may be declined, where their Relation is equal to the Pursuer and Defender, or in Cases of Affinity, where the Affinity has ceased by the Dissolution of the Marriage.  
Item, It may be doubted, if a Judge can be declined where he is related only to one who is a Member of a Society, which is Pursuer or Defender; as for instance, if the Process be against a College, and the Judge be Brother to one of the Masters of the College.  
Observ. From these words, The Exchequer and other Judicatures, That the Exchequer is a Judicature in our Law,  
BY this Act It is declared, That the high Court of Admiralty is a Sovereign Judicature in itself, 
ACT 16.  and imports summar Execution, by which last words is meant only, that execution of Horning may pass upon their Decreets immediately, without seeking a Decreet conform before the Lords, as of old, conform to the 15 Act Par. 20. Ja. 6. which is here wrong cited, and called the 12 Par. But this summar execution is no mark of its being a Sovereign Court; for Sheriff and Bailiff Courts have the same privilege. But that which makes this Court a Sovereign Court is, that by this Act it is declared, that they may not only review the Decreets of inferior Admirals, but their own; and the reason why they are allowed to review their own is, because it is their custom to grant ofttimes Decreets summarily, for not finding Caution; and it were hard not to allow the persons concerned to be heard upon an offer to find Caution: as also, It is declared by this Act, that no Advocations shall be granted from them to the Session; but even this is not observed, though it was the great design of this Act, for this Act restricting this Privilege to maritime and Sea-affairs, the Lords Advocate Causes from that Court, as not maritime, it not being determined what Cases are maritime, and so can be comprehended under that Term.  
The Lords are still allowed to Suspend the Decreets of the Admiral in praesentia, or by three Lords in the Vacance, which is hardly to be reconciled with its being a Sovereign Court: And yet in some Cases, the Lords Suspend the Decreets of the Justice-Court, and of the Commission of the Kirk, which are certainly Sovereign Courts. The Admiral Court has got also power by this Act to apply the Fines and Amerciaments of their own Courts, to their own use, which formerly belonged to the King; and they have also the sole power to grant Passes and safe Conducts to Ships, which by a special privilege was granted immediately before this Act, very irregularly to Magistrates of burgh's Royal, and in the time of the late Dutch War, it was granted to a particular person, named by His Majesty, who was called Surveyer-general; and was bound by his Instructions, not to grant a Pass to any Ship till he was aboard, and Surveyed all that was in it; only he had power to make a Deput for A●erdeen, and beyond it.  
BY this Act because common things are neglected, and Creditors are disappointed of all the Rents where the same are controverted amongst them; 
ACT 17.  therefore they are allowed to roup the Lands of the common Creditors, when become Bankrupts, which is now done by Summons, Narrating this Statute, in which all the real Creditors are Cited, and thereupon the Lords grant a Commission for trying the value of the Estate, and then they determine what shall be the least price, and they name a Lord before whom the Roup is to be made, and Letters are raised, Charging Creditors to appear on twenty one days, at such an hour at the New-Session-House, to offer before such a Lord, at which Day he comes to the Outter-House, and the Clerk Reads the Acts, and Commission to that Lord, and the Macer offers the Lands at the price put on them by the Lords three several times, and if none offer more, he who raised the Summons gets them at that price.  
After all this, the Creditors go on in their multiple poinding, and being ranked according to their due preference, the price is distributed amongst them accordingly, though it may be Debated that this preference should be first determined, since till then Creditors will not willingly offer.  
It seems more reasonable that Roups should be in the Shires where the Lands to be sold do lie, for there will be more buyers found there than at Edinburgh: I could likewise wish, that where any of the Lords of the Session are Pursuers, they would name Commissioners in the Country to make the Roup, for Societies should shun sibi jus dicere, where the same can be supplied by others.  
I think also that it were fit that Roups were made three several days, and not all at one time, as is required by the Doctors; for this would give all persons concerned time and opportunity to appear, and consider what is fit to be offered, for men may be surprised, or be sick, or busy at one hour, or time. I conceive also, that the Lord who makes the Roup, should stay all the two hours allowed, not only to the last moment, but from the first, as we see the Judges do in Roups abroad, and before our Admirals, where the Roups are therefore appointed to be made ad candelam, or clepsidram, and in Orders of Redemption, we see that the Redeemer must wait from Sun to Sun; and though where the Common Good is to be Rouped in Towns, or the Customs in Exchequer, the same use to be done in half an hour or so, yet it is a different thing where Creditors are to offer for getting payment of their own just Debts: and for the same reason it seems, though a just Creditor come somewhat late; yet if he offer more, he ought to be preferred, nam de minimis non curate praetor, and the interest of lawful Creditors ought to have greater favour.  
It is doubted, if a part of the Bankrupts Lands may be Rouped, since the Act ordains in general his Estate to be Roupt, and a part of the Estate cannot be called the Estate; and it were hard to choose out the Mannor-place, and some little part of the Land, by the want whereof, the rest would become of little value: The Act also by ordaining the price to be distributed among the Creditors, insinuats that one Creditor cannot choose a part to be Roupt for payment of his particular Debt.  
Whether the Lords may stop offers when they grow exorbitant in prejudice of offers of a just price, made by lawful Creditors; and whether a Creditor should be preferred to a stranger, both offering the same price, though the stranger made the first offer; and if a Creditor in passion may be allowed to repent, and if he should get Deductions in case of supervenient War, Pestilence, or vis major, may be seen with many other intricat questions, fully discussed by Matheus de auctionibus, and Postillus de sub-hastationibus, where all the matter of Roups are excellently Treated.  

ACT 18.  WHen Field Conventicles, and other Insolences grew insupportable, the Privy Council required the Sheriffs, Bailies of Regalities, and other Magistrates to call together these within their Jurisdictions, for repressing the same; but they answered, that this was not possible; whereupon the Council being justly jealous, that the Sheriffs did not their Duty, gave Commissions to the Commanding Officers, and other Gentlemen to be Conjunct-Sheriffs, as to all Ecclesiastic Disorders, and found that these contributed much to quiet the Country; but this being complained of, as a stretch of the Prerogative, This Act was made, Declaring That His Majesty may by Himself, or others Commissionated by Him, take Cognizance and Decision of any Causes He pleases, notwithstanding of any Jurisdiction bestowed by Him and His Predecessors; For understanding whereof, it is fit to know that all Jurisdictions granted by absolute Princes, are cumulative, and not privative; for though they empower others to distribute Justice to their people, for their and their People's greater Conveniency; yet they never thereby denude and debar themselves from judging or appointing others; for the King may see, and the People may find Judges very unfit, and that the Government is ruined by them; and yet a Crime cannot be proved, whereby Deprivation may be inferred: whereas there is no inconveniency on the other hand. 2. This is clear by Craig to be our Law, lib. 2. diag. 8. Illud tamen generaliter observandum, quod jurisdictio nunquam privative, said cumulative delegari potest: non est enim quasi translatio juris ex una persona in aliam, sed tantum mandata jurisdictio, quae non obstante delegatione adhuc remanet in delegante. 3. This is no more than what was allowed to the King by the 27 Act Par. 5 Ja. 3. Whereby it is Declared, That it shall be lawful to the King at his empleasance (or pleasure) To take Decision of any matter that comes before him, likeas it was wont to be as of before. 4. This keeps heritable Officers in a just awe, and secures People; for if they will be partial or remiss, they know that others may be named to supply their Defects.  
THe occasion of this Act was a Solemn Debate betwixt Provost Curry and Charles Oliphant in December 1677. 
ACT 19  In which the said Provost raised a Reduction of a Right made by the Mr. of Mordingtoun to the said Charles of the Lands of Nether Mordingtoun, and Edringtoun, as made by a Minor; and though an Oath was adjected by the Minor, to Ratify at his majority: Yet that was likewise null, since by the same facility that Minors will Contract to their Laesion▪ they will likewise swear to their Laesion; and therefore it is the public interest, as well as the interest of the Minor, that such Oaths should not bind.  
To which it was answered, that though the World, whilst Pagan, did Rescind such Oaths; yet by the famous Law sacramenta puberum, such Oaths were to be observed: and though Oaths given against a public Law, were not to be observed; yet in such a Case as this, where the public was not concerned; and where there was no Statute against the interposing such an Oath, the Oath ought to be observed, as being a matter of far greater consequence than the Contract: Nor should Judges favour Perjury, or ensnare people who trusted Oaths; and even in Countries where Statutes were made against the validity of such Oaths, they ordained the Minor to be first absolved by a Churchman; and since we had no such Absolutions, we could admit of no Restitution. To which it was Replied, that the Laws Restoring Minors were founded upon public Good and Interest; and therefore it were absurd to suffer the Contravention of them to be secured by an Oath, and that an Oath adjected by a Minor, should no more bind than an Oath adjected by a Wife, which has been by many Decisions found not to be binding, and even in these Countries where the Canon Law takes place, this authentic Constitution is not observed, viz. in France, Flanders, etc. as is observed by Guidilinus de jure novissimo, lib. 3. cap. 12. It was 2 lie alleged, That such Oaths ought not to secure where the Deed is in itself invalid and illegal, as here where the Father authorises the Son to Confirm a Deed to the Fathers own advantage, nam nemo potest esse author in rem suam. 3. It ought not to be respected even by the opinion of the Civilians, where there is aenorm laesion; which aenorm laesion is dolus praesumptus: and no oath can secure against fraud or dole. 4. Though the Minor might have prejudged himself by that oath, and thereby have secluded himself from craving Restitution; yet he could not prejudge the Provost who was a third Party, and was his Creditor; for the effect of the oath being only personal, could not reach him. The Lords upon this Debate sustained the Contract, and Repelled the Reason of Reduction, though raised by a singular Successor. But they caused draw this Act of Parliament, Discharging for the future, the exacting of such oaths: annulling likewise the Contract, and Declaring the Elicitor of the Oath to be infamous.  
Nota, These words in the Act, That it shall be competent to any person related to the minor, to obtain the Writs to be declared null, were adjected, because some minors might scruple to pursue a Reduction of a Writ, that they themselves had granted upon Oath; and albeit this Act Declares only such Contracts to be null, yet it will certainly extend to Bands, Dispositions, and other Writs; for as the Reason is the same, so both the Narrative and the last words of the Act, has the word Writs, which comprehends all these; and I conceive the Remedy of this Act will extend likewise to promises, though these be not comprehended under the word Writs; for if it were otherwise, the Act might be eluded by taking of Promises upon Oath from Minors: As also, albeit the Narrative Relates only to Writs of Importance, by which are only meant in our Law, such wherein the sum exceeds an hundred pounds Scots: yet since the Statutory part is general, and that an hundred pounds may ruin poor people, nor should men of Substance Las●le an Oath by interposing it, to mean matters; therefore I think that this Remedy should be extended to all cases whatsoever.  

ACT 20.  BY this Act for facilitating the course of Trade, Bills of Exchange are ordained to be Registrated within six months after they are due, and though the Bill bear no consent to the Registration as Bands do; yet they are registrated by virtue of this Act, which is Narrated in the beginning of the Paper that is Registrated; but this is of no great use; and therefore Merchants choose rather to pursue summarily before the Dean of Gilds Court, who is with us, le consul des Merchant's, and even these Pursuits are disappointed by Advocations; nor have they so much as the privilege of being Discussed summarily, without attending the course of the Roll, as was craved by the draught of the Act that was first under consideration. It was also craved, that Compensation should not be received against Bills of Exchange, as is Customary abroad; and a Bill is in effect, in the construction of Law, a bag of Money trusted by the Drawer, and to be redelivered in another place; and Compensation is not even by the Common Law received against Depositations.  
The reason why this Act was only extended to Bills drawn from abroad, or in favours of persons abroad; and not to Bills drawn from one place within the Kingdom to another, was, because if that had been allowed, all Debts had still been constituted by Bills, and not by Bands, and so had been privileged by too summar execution.  
BEfore Parliaments can proceed to public Affairs, 
ACT 21.  all the controverted Elections must first be cleared and determined, which being the occasion of great delays in the dispatch of business gave the rise to this Act, whereby it is ordained, that none shall have vote in the Elections of Commissioners for Shires or Stewartries, except those who are publicly Infeft in Property or Superiority, Life-rent or proper Wodset, and in possession of a 40 shilling Land of old Extent, holden of the King or Prince, or in Lands of 400 pounds' Valuation, whether Kirk-lands, or other Blench, Few or Ward-lands, and that appearand Heirs being in possession by virtue of their Predecessors Rights, and Husbands for the free-holds of their Wives, or as Liferenters by the courtesy of Scotland, of the Extent and Valuation foresaid, have right to Vote.  
The Shire of Berwick having made cross Elections of Commissioners to the late Parliament, the Committee for controverted Elections decided these points for clearing this Act, which report was approven in Parliament.  
1. That a Charter confirmed by the King of a 40 shilling Land, does not give a party right to vote, except his Season thereupon be produced, and that the Confirmation be of the Season, since the Confirmation of a Charter, imports no more but the Confirmation of a personal obligment.  
2. Vassals of Kirk-lands of the Extent and Valuation foresaid, have no vote unless they hold their Lands of the King as their immediate Superior; for since it is optional to them, either to hold of the King, or Lord of Erection, by the 53 Act, 1 Parl. Ch. 2. it is presumed they still hold of the Lord of Erection, unless they instruct that they hold of His Majesty.  
3. Where Vassals produce Rights to a part of a Barony, that will give them no right to vote, except they can instruct that their Lands are Retoured to such a proportion as put them in the terms of the Act of Parliament.  
4. Life-rents not constitute by Infeftments, but by personal obligments, give not the Liferenters right to vote.  
5. Persons Interdicted seem to be debarred from voting, since they who were not fit for managing their own affairs, ought not to be trusted to vote for Commissioners to Parliaments; but this I think should only hold in Interdictions, causa cognita, very judicious men consenting to voluntar Interdictions.  
6. If the King be only Superior supplendo vices of the immediate Superior, by his not entering to the Superiority: this will not give the Vassal a vote, since the immediate Superior retains all the casualties, and consequently remains still Superior, albeit pro hac vice the King supplies the defect of the Immediate Superiors lying out, by infefting the Vassal.  
7. Appearand Heirs, albeit in the terms of this Act have no right to vote, if they have renounced, or if their Predecessors were denuded, albeit they were in possession, the famine being only by a tolerance from the Party in whose favours the Predecessor was denuded.  
8. Appearand Heirs by the Mother's side, gives not a Title to vote, except they be actually entered Heirs, since it is presumed there are Heirs Male, except the contrair be proven by a Service.  
9 Vassals who have expired Apprisings, or Adjudications, have liberty to vote, albeit by an Act of the Lords of Session, the Lands are declared to be redeemable for the Sums truly due, since by this Act Apprisings, Adjudications, and proper Wodsetts, are not to be questioned upon pretence of any order of redemption, payment, or satisfaction, unless a Decreet of Declarator, voluntar Redemption, Resignation, or Renunciation be produced.  
10. It was found in the Election of the Commissioners of East- Lothian, that no votes are sustained, but these who voted and signed before the Meeting was dissolved; and the votes of those who came immediately after, were not sustained, though the Prese returned with some of the number. But in the Elections for the Mers, it was found that a person was capable to vote, albeit he was detained Prisoner by a misinformation from one of the Competitors; he having given an account of the way and manner of his Imprisonment to the Meeting, and declared his vote to them, and after his enlargement did immediately take the Test, and sign the Commission.   
FINIS.   

Several Additions and Supplements to the Observations on the Acts of Parliament.  
BY this Act the Wardens are discharged to judge, which is here called very oddly to intromet with, 
Observation on ACT 42. Par. 11. Ja. 5. pag. 47.  any thing that pertains to the Dittay of the Justice-Air, saving the points that are needful for conservation of the truces (or Truce) that is to say, the Jurisdiction of the Wardens by this Act is prorogated to the cognition of all Crimes which were necessary to be judged by them, for preservation of the peace betwixt the Kingdoms; and so the first part of the Act specifying Treason, was unnecessary, for it was comprehended under the general: but now the Commissioners of the Borders, who are come in place of the Wardens, have power directly, and so not only incidenter to judge Thefts, and many other points of Dittay.  
TO add after these words, 
Act 114▪ Par. 6. K. Ja. 4  The King may make any man a Lord of Parliament; yet by the constant course of posterior Acts of Parliament concerning elections and representatives of Shires in Parliament, and by the constant custom acknowledged both by King and Parliament, none can represent Shires in Parliament, but such as are actually chosen by the Shires whom they represent.  
AFter these words, That a Registrat Extract will not stop a Certification, when a Horning and its Executions are called for, 
Act 94. Par. 6. Ja. 6. p. 200.  but the Principal must be produced. It is fit to add, That though this hold against the User of the Horning, yet the King's Donator is not obliged to produce the Principal Horning, for else by collusion betwixt the Debtor and the Creditor, the King's Donator might be easily prejudged.  
WHereas it is said, 
Act 29. Par. 11. K. Ja. 6 p. 2●9.  that decimae inclusae are to be burdened with no part of the Ministers Stipend; for clearing whereof it may be added, that this was so decided before the Commission in January 26. 1675. Heretors of Tulliallan contra colvil; but afterwards in March 1684. the same Case being heard in Praesentia before the Lords, by a reference from the High Commission; it was found that conform to this Clause in the Act of Annexation, reserving the tenth penny to the Ecclesiastic person, that therefore the Heretor having right to his Lands, cum decimis inclusis, should be liable to the Minister for the tenth part of his Feu-duty, with relief to him against the Titular pro tanto.  
AFter these words, The Earl Marshal contra Brae, add, 
Act 141 Par. 12 Ja. 6. p. 269.  this Decreet was in foro: And Stairs asserts, that competent and omitted before Baron-Courts, is not considered.  
THe answer to this doubt is, that the Act of the Convention Anno 1665. doth not make either Stipendiary Ministers, 
Act 162 Par. 12 Ja. 6. p. 227.  or Ministers having modified Stipends liable to Impositions, but only ordains Beneficed Persons to be Taxed: And the Convention 1667. having ordained the Impositions then laid on, to be Levied according to the Valuation led in Anno 1660. and not according to the retoured Duty (which was the old way) did ordain, that Benefices should be valued, and pay, in so far as these Benefices exceeded the modified Stipend, and so they are burdened in both these Acts as Beneficed persons, and not as Stipendiary Ministers, of whom this Act only speaks.  
IN the second Observation upon the said Act, it is said, that the Lords will allow the user of a Writ to condescend who was the Writer, 
Act 175 Par. 13 Ja 6. p. 280.  albeit his name be not insert, nor condescended on in the Writ. But now by the 5 th' Act, Parl. 3. Ch. 2. all Writs not condescending upon the Writers in the Body, are absolutely null▪ and not suppliable by a condescendence, ex post facto.  
THis Observation should be thus worded, The Act here related to, 
Act 80. Par. 9 Q. M. p. 168.  is the 34. Act, Par. 6. Q. Marry; and the Acts dispensed with both in this and the said 34. Act, is the 77. Act, Par. 6. Ja. 5.  
WE have this custom of Morning-gift from the Germans, which is called in their Language, 
Acts 190, & 191. Par. 13 K. Ja. 6. p. 283  Morgengab, and is learnedly treated by Milerus, in his Gamologia personarum illustrium, cap. 6. Where he defines Morgennatica to be donum matutinale quod olim apud Germanos & Francos una cum do●e proprium patrimonium erat uxoris, vid. pag. 160.  
WHereas it is said there, that a Band wanting Witnesses is null, if the same exceed an hundred pounds, 
Act 200 Par. 14 K. Ja. 6. p. 286.  and is valid, if restricted to 100 pounds: It is fit to add, that this seems to be somewhat dubious, in respect of the 175 Act, Par. 13. K. Ja. 6. and 5. Act, Par. 3. Ch. 2. which declare all Writts, without exception, null, that are not subscribed before Witnesses.  
IT being asserted in the Observations upon this Act, that the reservation of the Act extends as well to the Patronage of Mensal Kirks, 
Act 2 Par. 18 K. Ja. 6. p. 321  as those that are of the Bishop's representation; this Caution should be subjoined, that notwithstanding of the Decision there mentioned, March 25. 1631. It may be contended that Mensal Kirks are not contained in the said exception, and that because that exception mentions only Patronage of Kirks pertaining to Bishoprics, whereas a Mensal Kirk is not Patronate, being a part of the Benefice, and the disponing a Mensal Kirk is a formal Dilapidation of the Benefice, and so contrary to other Acts of Parliament.  
NOtwithstanding of the decision I have there cited, it see●s that this Act of Parliament is designed to make all Retours, 
Act 13. Par. 22 K. Ja. 6 p. 350.  even at the instance of the nearest of Kin irreduceable after 20 years, and that even where competition is betwixt Heirs of the same kind; as if a second Brother had served himself Heir to his Father during the life of the elder Brother, or his Descendants in lineà recta; and it seems this has been the opinion of the Lords in the case Younger contra Johnstoun, 22. Novemb. 1665. Likeas the Act of Parliament makes no distinction, but on the contrary, having extended the Prescription of Retours from 3. year● to 20. and that only in favours of the righteous Heir, and nearest of Kin, it declares generally, that after the said 20 years, no party shall be heard; but yet it seems very hard, that if a second Brother himself, who knew he had an elder Brother; or yet more, if he were keeping daily correspondence with him whilst he w●re abroad, should serve himself Heir to their Father, that thereafter this Service might not be reduced, notwithstanding of this Prescription of 20 years; but it would likewise seem that there might be a speciality in this case, because the Dole, or it may be the knowledge of the second Brother, without any Dole, in some cases might hinder Prescription, which requires in Law bona fides, as one of its essential requisits; and yet if a third party bought or comprised that Estate, the Prescription might be valid, because the impediment being personal, could not prejudge him▪ and it is fit to observe, that what I said in general in my Observations upon that Act concerning singular Successors, was only mean● of singular Successors acquiring Rights before that Act, for they having bought bona fide before that Act, a supervenient Law could not prejudge them.  
FOr clearing the 4. Observation upon the said Act, it is fit to take notice, that albeit it be there insinuated, 
Act 14 Par. 1. Ch. 1. p. 377.  that Lords of Erection pay only a Blench Duty for the Lands Feved out to them the time of the Erection; yet it appears both by the Surrender and Decreet Arbitral following thereon, that they still pay a Feu-duty for the Lands Feved out to them since the Erection.  
Nota, After a solemn debate before the Exchequer, upon the 22. of January, 1686. It was decided in a Case betwixt Bellhaven and the Cashkeeper, that the King has right to the Feu-duties which anciently were due to Abbots, or Churchmen, before the Annexation, or to K. Ja. 6. before the Erection; and that these Feu-duties need not be redeemed as the Feu-duties of the Superiorities, which were holden of the Lords and Titulars of Erection, and whereof they had not acquired the Property before the Surrender; and that notwithstanding that for 5●. years together, there was a Blench-duty paid for the said's Lands and Aeques made ●n Exchequer conform.  
THe diligence mentioned in the said Act of Parliament, must be a complete, 
Act 24 Par. 1. Ch. 2. p. 395.  not an Inchoat diligence, for else it would run not for three years, as it is designed, but for forty.  
ALbeit by the 10. Act, Par. 1. Ch. 1. It was declared, that all Rights and Deeds made prior to that Act, 
Act 53. Par. 1. Ch. 2. p. 402.  which might prejudge his Majesty, as to the Superiorities and Feu-farms of Kirk-lands should be null, yet to elude that Act, there were Commissions procured from the King, to serve the King's Vassals in Kirk-lands Heirs, and to receive Resignations, etc. with right to apply the Compositions and Casualties to their own behoof; as also, they procured long Tacks, both of the Feu-duties and Casualties of the Superiorities, for payment of inconsiderable Tack-duties, to furnish a pretext that the King was still kept in possession, that they might not seem to contraveen the Act; as also, others than the proper Vassals of Kirk-lands procured from the King Rights of the Feu-duties after the King had redeemed the same from the Titulars of Erection, or procured a Right from his Majesty to redeem them, and so did in effect interpose themselves betwixt the King and his Vassals of Kirk-lands; therefore by this Act all these indirect courses are discharged; and the Earl of Dumfermling having procured a long Tack of the casualties of the Vassals of the abbacy of Dumfermling, containing a Commission to enter the Vassals ut supra, the Exchequer would not allow the same, albeit he had procured a Ratification of that Right in Parliament, and a Letter from King Charles the 2 d. declaring that it fell not under his Revocation.