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 Laicks .

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 commun ; ) and by the Common Law , and our present custom , the raising of Men in War-like 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 Majesties 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 Common-wealth , 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 Kings 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 Kings Host , at the Raid of Bigger , 1568. And yet I find , that Absents from the Host are Bail'd , March 15. 1576. though Treason is not of its own nature Bailable ; and that these Pannals , who are doom'd to have lost their Estates and Goods , after much debate , are notwithstanding quoad their Persons only warded during the Kings pleasure : And His Majesty , by His gracious Letter Nov. 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 Kings 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 immediatly 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 , betwix● sixty and sixteen , when they shall be called for .

Secundo , It was found that this Crime was not punishable now only by the punishment exprest 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 byding from the Raid of Dumfries , in Regent Mortons time , though he was alleaged to be past sixty five .

Quarto , That such Burgesses as had Lands in the Countrey , were obliged to send one for these Lands ( though it was alleaged 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 warrand 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 Pannels came not to the Host , that being a Negative ; but that it was necessary for the Pannel to prove that he was at the Host.

Septimo , That the King was not obliged to prove the Pannels to be Heretors , but that they were obliged to renunce any Heretage 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 refer'd to the Assize , without any further probation , as June 12. 1557. and some times to the Pannels 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 , &c.

Nono , It was found , that such as possess'd by the courtesie 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 Kings 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 form'd 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 implyed , that he is obliged to go , and the expressing of that Obligation seems omitted , because it was unnecessar , being implyed 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 immediat Superior had Right to half a years Rent ; and the reason of this seems to have been , because , by all our old Laws , the Vassal was obliged to attend his immediat Superior in going to the Kings Host ; and the Proclamation then commanded every man to come with his Vassals ; and therefore , as the King had Right to the Forfaulture , for not attending his Host , so the immediat 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 immediat Superior craved the half of the Fine .

THe punishment of such as ride with moe than their ordinary Houshold , is Arbitrary ; ACT 5. and this Act must only be interpret against such as ride ordinarly 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 Troups together ; and for this same reason are Convocations discharg'd 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 discharg'd ; but by this Act , the conveening 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 indefinitly , without telling by whom they are to be made ; yet by the 2. Act Par. 1. Ch. 2. The power of choosing Judges is declar'd to be one of His Majesties Prerogatives .

It is observable from this Act , that none can be Judges who have not sufficiently of their own , where-through 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 argu'd , that when any who is a Judge , or has an heretable Office , becomes insolvent , he may be forc'd to find a Depute , who is solvent , or else he may be discharged to sit .

Obs. Though it may seem , That if any Heretable Officer be incapable to exerce ; the King should name Deputs jure devoluto ; yet by this Act it is ordained , That if the Heretable 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 Husband-men in our Acts of Parliament ; By taxing the Kings Skaith is meant , to cause modifie 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 shew , 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 Soveraign Lord through the whole Ordinance of the Parliament Statutes .

Act 125 Par: 9 Jac: 1 : Through the consent of the whole Parliament , it is ordain'd .

Act 62 Par: 3 Jac: 1. It is seen speedful .

Act 76 Par: 5 Jac: 1. It is Statute and Ordain'd , and Act 78 and 79 : It is Ordain'd .

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 &c. 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 Soveraign Lord with advice and consent ; or , Our Soveraign 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 propos'd by the three Estates , to be Ratified in Parliament ; and so in effect are conceiv'd 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 Ordain'd , 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 Soveraign Lord Ride throw all the Realm , &c.

THere are many wayes 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 Countrey to produce their Evidents , as 262. Act. Parl. 15 ▪ Jac. 6. whereby all the Heritors in the Highlands are ordain'd 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 Impr●bation , wherein certification is granted against the Papers that are not produced ; which is deriv'd 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 Certifi●ation , 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 presum'd to be general Superior , and is Infeft Jure Coronae , in all the Lands of Scotla●d ; but though other Superiors must produce a Seasing of the Lands , yet they need produce nothing to prove that the D●fender is Vassal who is oblidg'd 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 expresly 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 alleadged , 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 Pursuite ; for the Lords thought , that this being an Act before answer , did solve this difficulty ; and the ordinar Maxime , 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 produc'd a special Right to the Lands Libell'd , but not where he pretended only , that the Land possest by the Vassal was part and pertinent of his Land , which any Pursuer might alledge .

The third , and old way of forcing the Vassal to exhibit his Evidents , was by a Feudal Tryal , 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 exprest 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 shew 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 priviledges contained in private mens Rights , though they cannot without citation cas●e and annul privat Rights .

ACT. 11. FOR understanding this Act , It is fit to know that the distance betwixt the Hecks of Cruivs should be 3. inches wide , which is renew'd 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 reviv'd in all these Statutes ; but that the Saturndays Slop was to be observ'd in all Cruivs , 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 Sun-rising .

ACT. 12. THough Mines of Gold and Silver , be by this Act declar'd 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 res●inded 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 Lead , 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 payed in to His Exchequer : and His Majesty has granted general Gifts of all Copper-Mines : 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 dispon'd Land with all the Silver-Mines , this would not comprehend Copper , Tin , &c. 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 ordain'd , that our Coyn be of the weight and fynness of England , ACT. 23. which was formerly ordain'd by the Ch. 38. Stat. Dav. 2. and though by the 17. Act. Parl. 1. Ja. 6. It is declar'd , that Our Soveraign Lord cause Print and Conyie Gold , and Silver of sick fynness as other Countries doe ; yet after King James succeeded to the Crown of England , He past 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. vnces , 2. deniers fine , which is call'd Sterling fyne , ours is 11. deniers and 2. graine ; and albeit upon a very subtile inquirie , It is alleadg'd 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 retain'd 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 judg'd them Temporary , as this Act and a Taxation impos'd for the Kings Ransome by this Parliament , wherein so much was put not only upon every Boll of Victual , but upon every Beast of Cattel . 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 ordain'd that the breakers of the Acts of Parliament be punish'd after the form and ordinance thereof ; whereas that Act runs thus in the Black Impression , Item , that it be enquired by the Kings Ministers gif the Statutes made in his first Parliament be kept , and if they be broken in any of their p●nctilio's , that the breakers of them be punisht after the form and ordinance of the said Parliament .

The Rubricks 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 Rubrick 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 Kingdome 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 propon'd sundry Articles , to which was answer'd 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 nam'd , the Parliament Adjourn'd ; and the custome was , that they never mett 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 Law-giver , 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 prescrib'd by the 1. Act , 1. Parl: Sess : 3 : Ch: 2.

ACT 26. BY this Act it is ordain'd , that if any Lands or Possessions of Haly Kirk be wrongously annaly'd , they should be restor'd 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 Church-men are not Proprieters of them , but Administrators , and Li●renters , praecarij possessores , quibus tanquam commendatis , non tanquam proprijs uti debent . Salv. 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 sacro-sanctis Ecclesijs ; But yet there are three cases excepted , in which it is permitted to alienat them exprest in Gloss. causae , 12. Quest. 2. viz. 1. In causa necessitatis , if the Churches Debts require the same , as for maintainig its Fabrick , or to maintain the Christian Religion against Infidels or Hereticks . 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 discharg'd to lessen the Rental of their Benefices , by setting Feues , Tacks , conversion of Victual for Money , or any other Disposition . By the 5 th Act. Parl. 22. Jac. 6. Bishops are discharg'd to set in Tacks their Quots and Casualities , and though this last Act seems unnecessary , because of the former , yet it was made , least it might have been debaitable whether Casualities 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 Casualities , as to give a Liferent to the Husband of the Heretrix , in place of the Courtesie , and though Prelats , aswel as Barrons , 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 Feu'd out for the equivalent Rent , when at first they were Barren , but they are no warrand to Bishops to Tax their Wards for a certain Dutie , for this is contrarie 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 shews that Regularly it was not lawful , and this did prejudge the King also , who might have right to the Ward , and Marriage , sede vacante , from which he would be debarr'd by Taxing these Casualities : And therefore Sharp Arch-bishop of St. Andrews having Taxt the Ward-holdings of the Lands of Blebo , that Right was reduced by his Successor , 12. March 1684 , Though it was alleadg'd , that though Church-men cannot alienat Teynds , which are the Spiritualities of the Church , yet they are domini , and not administratores tantum , as to the Temporalitie , which was said to be also Craigs opinion ; and Taxing was a more constant Rent to the Church , and as a Bishop might Gift a Ward which could not be quarelled 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 annext Property unlawfully Dispon'd , but any Process of Law , yet in this Act Kirk-men are not to resume the Lands wrongfully annalȝied by them , otherwayes 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 renew'd 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. HEreticks 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. Church-men who are Hereticks are to be Excommunicated , and Depos'd , if they revock not their Heresie ; the punishment by the Common Law is Burning , and Confiscation of Moveables , Clar. Num. 13. This Act was made against the first of our Reformers , called then Lollards , for the Rubrick in the Black Impression bears of Hereticks and Lollards .

Obser. From this Act it is observable , that the Kirk was Judge to Heresie , in prima instantia ; and Clarus makes the Tryal so far Ecclesiastick , 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 alledged 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 Analogie , as in the case of making Men answerable for their Wives not going to Church , &c. And the meaning of this Act is , that Judges shall not have liberty , commutare paenam Lege definitam expresse , 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 declaratorie Interpretation is by all Lawyers acknowledg'd to be a Literal Interpretation , Voet. ibid , albeit in general it cannot be deny'd , that these who have power to make Statutes , must by a necessarie consequence have power to modifie and qualfie them as they please ; and as they may allow inferiour 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 inferiour Judge cannot Extend or Interpret otherways than in the terms foresaid .

ACT 30. LEagues and Bonds are by this Act only declared null , but by the Act. 12 Parl. 10. Jam. 6. and Act 4. Parl. 1. Ch 2. they are declared punishable as Sedition , and were punishable by Warding , Act 43. Parl. 6. Q. Mary .

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 carry'd 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 behov'd 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 discharg'd 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 discharg'd 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 Moveables is added , but the ill Increasing the Moveables of the Masters , and Skippers of such Vessels in which it is transported , are declar'd 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 discharg'd all Persons to export , yet all other Acts mentions Strangers , when it is design'd 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 mention'd ▪ and if the words , ( all Persons ) are not in our Acts to be restricted to Natives .

Though by the Civil Law the owners be lyable for the Skippers fault , in so far as concerns the prejudice done in the Ship ; yet it seems hard , that an owners escheat shall fall for the Skippers taking in Tallow , else Rich men would not be Owners , and Skippers might Maliciously ruine their Owners , and therefore it seems that by Masters here should only be mean'd Skippers , and by the Civil Law , the Skipper was call'd 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 exprest , Act. 84. Parl. 6. Ja. 6. but thereafter cutting of Green Wood is punisht 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 pecuniarie mulcts .

ACT 34. BY the Common Law no Judge can cite a Malefactor without his own Territorie , 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 lye , out of which the Wood was stolne , and none other ; but it seems that this being only introduced in favours of the Person injur'd , he may renunce it , and pursue before the Judge of the Jurisdiction , in which the Offender dwels , 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 severly 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 Rebells are punishable by Forfalture .

For understanding whereof , it is fit to know , that there are some manifest Rebells de jure , and some de facto . Such as are denunced and registrated , are manifest Rebells de jure ; for though the Leidges 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 Leidges 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 exprest in the Act. 11. Pa●l. 2 d. Ch. 2 d Sess. 1. are likewise manifest Rebels de jure , since all are oblig'd to know what is in Acts of Parliament ; but it has been doubted , whether the resetting even of these after they have been allow'd for many years , to appear publ●ckly in Kirk and Mercat , to the knowledge of the Kings Servants should infer paenam ordinariam ; or whether the said paena ordinaria can be inferr'd , by resetting such as are mention'd in a Proclamation .

These are manifest Rebels de facto , whom the Pannel 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 Armes , before they were defeated , it were ridiculous to alleadge 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 inferr'd 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 inferr'd from conjectures ; and the Acts of Parliament require very wisely , that the Rebellion be wilfull ; These who are here call'd Manifest , and open Rebels , are by the 4 th Act. Parl. 1 Ja. 1. call'd Not●or Rebels , and notorium , by the com●on 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 Moveables ; 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 certifie 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 Repell'd 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 Des●etude . ACT 38.

THough this Act appoints Deacons to be , ACT 39. yet all Deacons are discharg'd , 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 Incorporat 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 Deacon●ie , they cannot begin to choose Deacons , without first obtaining liberty from the Council for that effect , by Petition ; so far still is the pu●lict Peace of the Nation thought concern'd in all Deaconries , and in a Process at the instance of the Trads-men of Brunt-Island against their Magistrates , concluding that they ought to have Deacons , because their Charter gave them as great Priviledges 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 liv'd so long without Deacons , and the Trads men being so few , they were not oblig'd to have Deacons . In Spain and France , such Colledges are discharg'd , 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. BEggars ( or Thigsters who are gentle Beggars ) should have a Token from the Sheriff , or Magistrates of Burghs , 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 inventers 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 discus't before inferiour Courts , and the Parliament should not be Judges in the first instance , But de facto , many privat cases are intended before them .

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