THE Laird of Grant having obtained his Lands to be erected in a Regality , the said Laird of Westfield , as pretending Right to the Hererable Sheriffship of Murran , within which some of the Lands ly , did raise a Process before the Lords of Session , for Reducing of the Signature in favours of Grant , and declaring that his Regality could not extend to any Lands lying within the bounds of the Heretable Sheriffship . And Grant did likeways raise Reduction and Declarator of the said Alexander Dumbar of Westfield's Right to the Sheriffship .

The Question in these mutual Processes being not only in relation to Civil Right , but having extended to the consideration of His Majesty's Royal Prerogative , and the Extent of the Jurisdiction and Interest of the Regalities and Sheriffships in general . The Case was Remitted to be considered by the Parliament .

Westfield's Ground of Reduction and Declarator is founded upon the common Brocard , Quod meum est fine facto meo auferri non potest : And he did subsume , That his Heretable Office of Sheriffship within the bounds of his Right , was his undoubted Property ; and therefore could neither be diminished nor taken away , in whole nor in part , but by his Consent , or Order of Law .

On the other Hand Grant did repeat his Reduction of the Sheriff's Right , with a Declarator of the Right and Priviledge of his Regality : And the mutual Reasons of Reduction did result in Defences .

It was aledged for Grant . That his Right of Regality was validly founded upon the Kings prerogative . 1mo . Because the King is not so denuded by granting a Sheriffship , as that he may not grant other Jurisdictions within the Sheriffdom ; seing the Right of Sheriffship is but a naked Office appointed for the execution of the Lawes , & the King to whom the execution of the Laws does belong jure majestatis has essentially , notwithstanding of whatsomever Commissions granted for executing of these Laws , power to grant new Commissions also often as it shall seem expedient or useful : And the Sheriffship and Regalitys , are of quite different Natures , the Office of a Sheriff being nudum ministerium , whereas the jurisdiction of Regalitys is not only a teritorial Jurisdiction over the Lord of Regality's own Vassals and Tennents , but has several other priviledges which do unquestionably belong to His Majesty to dispose of , as being inter regalia , 2do . The King has been in constant use to 〈◇〉 Regality's within the bounds of Shireffships , and there are almost innumberable instances of His Majesty and His Prodecessors having granted , both Ancient and Recent Regalities , such as the Regalities in favours of the Marques of Douglas , in favours of the Duke of Hamiltoun and many others that may be named . 3tio Besides the Kings Right and custom of granting Regalities , there concurs here an universal and constant acquiescence ; So that the Sheriff of Murray is the first that ever has drawn His Majesty's Prerogative as to that matter in question . 4to . Besides , the Kings Right , Custom , and the long acquiescence of all having interest , the Kings power is likewise fortifyed by the Opinion of Lawiers and particularly Mckenzies Criminals Part : 2. Tit : 9 : N. 4. Where he Cites Hope who observes the same to have been decided , and instances a particular Case in his own time 5t● . The Kings right & power is further established by the daily custom of erecting Barronies . Burghs Royal , and Stewartrys within heretable Sheriffships ; and albeit the Jurisdiction of the Barons be only cumulative ; yet still it lessens and diminishes the Jurisdiction of the Sheriff and prejudges him , and consequently it is an undenyable evidence that the King by granting of a Sheriffship , is not excluded from erecting other fewdal Jurisdictions within that bounds , whereby the Sheriffs Jurisdiction may be impaired and diminished , and that the Rights by which the Sheriffs injoy their Offices are not considered as other Rights of Property ; but only as nuda officia & ministeria . 6to . Et separatim by the 44 Act of Parliament 11. Ja: 2. It is statute , That no Office in time coming be given in fie and heretage , which Act is the fundation of all the Revocations made by our Kings since : So that unless Westfield's Right of Sheriffship were instructed to be more Ancient than the foresaid Act ; it is against Law , and can be no pretence to quarrell His Majesty's Right , and this is objected not only as a Nullity against the Sheriffs Title , but as a Reason of Reduction .

It was Answered for Westfield , 1mo . That the Right of Sheriffship was alse much a Right of Property , as the Right communicat to the Lords of Regality : And by the Defender's way of arguing , he lays the Foundation to destroy the Right of the Lords of Regality , as well as the Right of Heretable Sheriffs : For if the King can notwithstandding of the Sheriffship , erect a new Regality within the same bounds , because he can never be so divested by any Commission , that he may not grant a new Commission for executing of the Laws as he sees expedient : Then by the same Reason , no Grant of a Regality can hinder him to erect a new Jurisdiction within the Regality . 2do . An heretable Office is truely a Right of Property , although it be quid incorporeum : For it hath all the Marks and Characters of any other Right , in so far as it may be transmitted to Heirs , Gifted . Sold , or Apprised : And even the King's Majesty did so far consider Heretable Sheriffships as Rights of Property that Heretable Sheriffships have been bought by our Kings for considerable Prices : And it is certain , that the Emoluments and Profits of heretable Offices are in Patrimonio . 3tio . If the Defenders reasoning can be allowed , then the King might erect another Sheriffship within the bounds of an Heretable Sheriffship : For it is certain , that a Regality being a Privative Jurisdiction , does alse formally constitute a distinct Territory , as if there were a New Shireffship erected within the bounds of an Old Shireffdom . 4to . As a further evidence , that the Heretable Office of Shireff is a Right of Property ; it has a distin●t Reddendo and Duty payed for it every Year to the Exchequer . And 5to . To put the Matter beyond question the Act 18 Parl . 1681. having declared , That notwithstanding of the Jurisdictions and Offices bestowed by his Majesty and his Predecessors upon his well deserving Subjects ; yet his Majesty might by himself , or any commissionat by him , take cognizance of any Case or Cause , as he pleaseth : That Act is rescinded is by the 28 Act Parl . 1690 ; whereby all pretence of Power to erect new Jurisdictions within the bounds of Heretable Offices , is intirely excluded : And in Anno 1693. the King and Parliament were so tender of Heretable Offices , that when the Commission for the Justiciary in the Highlands was granted , they would not incroach upon the Earl of Argile's Heretable Justiciary .

Before Grant make any duply , for clearing of this point in question , it is to be considered . 1. That regularly in conferring of Offices with jurisdiction , there is special regard had to the fitness of the person , and the jurisdiction is personal , and can neither be convoyed nor transmitted to singular successors . 2. Although this did obtain by the Principles of the Common Law ; yet the Fewdal customes did introduce Territorial jurisdictions , which was the Right of Jurisdiction granted to a Proprietar or Superior over his own Tenents , Vassals and Servants , which came to be a part of his property , and was a quality of his Possession , and was transmitted to his Heirs and was convoyed with the Territory , to which it was above annexed ; And as to which he was constitute the Kings Vassal , and obliged to answer in his Majestys Courts . 3 Of these Barons , some had more extensive and larger priviledge , and enjoyed more of the regalia and some less , as appears by our Ancient Laws , and particularly by the 9 Cap. of the Statutes of King Maicom the second . Its evident that there was a distinction by the Chartors of the priviledges of Barrons : And it does likewise appear by the Satutes of the said King Malcom , and of King Alexander the Second , That the Jurisdiction , the Power of repledging the Right of the Escheats competent to the Ancient Barrons , was in effect the same Power which more lately came to be distinguished by the name of Regalities . 4. As there was Anciently Established the Territorial and Fewdal Jurisdiction of the Barons ; so there were other Officers who had no such Fewdal Rights , but had Commission from the Government for the more Universal application & security of the publick Laws & quiet , such as were the Chamberland Heirs , whose Jurisdiction was over the Burrows , the Justice Heirs , whose circuits took in the rest of the Kingdom the Sheriffs , whose duty consisted Chiefly in publishing the Laws , maintaining the quiet , and seeing these Laws with the sentence of the Justice Heirs put in Execution , and he had a Jurisdiction Civil and Criminal for these effects ; but still it appears that that Office was but personal ; and therefore by the Statutes of Robert the Third they might be removed from their Office , and another might be put in in their place , and the last day of the Justice Heir the Sheriff was to those an assise for tryal , if he had used and done his office truely . 5. The Rights of the Sheriffships coming in the hands of considerable persons , by abuse were perpetuat , and at last it seems , that although there is no Precedent for such a jurisdiction , whereby a person and his Heirs comes for ever to be interposed betwixt his Majesty and his Subjects , who are no other way subject to the Sheriff either as Vassals or Tenents ; yet the Office insensibly came to be Heretable . 6. It is probable that these incroachments did oblige the greater Barrons to secure themselves in their Ancient priviledges and Rights by obtaining Chartors asserting these priviledges , which gave the rise to formal Erection of Regalities .

This being premised , it is easie to take off the Pursuers reply , and first there is a manifest Disparity betwixt the case of Regalitys and Sheriffships , for the Sheriffship is but a naked Office and Commission : which the King can never so absolutly grant , as to divest himself of the Royal and Supereminent Jurisdiction which is lodged in His Majesty for the Execution of the Laws and publick Good , and of granting of Fews with the full extent of all priviledges which have a Name in our Law , and are clear by constant custom , and such are Regalitys which are a part of the Fie and Property of His Majestys Vassalls , over their own proper Tennnets , or their S●b-vassalls , and the King can alse litle be divested of that Power , as he can be of the Priviledge of erecting Barrons , which is but a lesser instance of the same Authority : And hence it is evident , That though the King can erect a Regality , which is a Quality of a Mans own Property within the Sheriffship , yet he cannot erect a Jurisdiction within the Regality , because that were indeed to Impare a proper Right of Fie .

2do . From the same Reason it is evident , That all these Instances of transmitting to Heirs . Gifting , Selling , Apprising , which are now established by Custom , have been at first introduced by Abuse , and are really contrary to the Nature of a personal Office : But whatever Custom may have established as to these instances ; yet there is no instance which is or can be condescended upon , wherever it was pretended , that the granting of an Heretable Shireffship did hinder the King to erect a Man's own Lands with special Priviledges of Jurisdiction ; as to that Point we have no such Custom ; and all these Transmissions are always understood to be under the Burden ; and but prejudice to his Majesty's Right , for the good of his other Subjects : And albeit King Charles l. did purchase the Right of several Heretable Shireffships ; yet that was not so directly an Acknowledgement of their Property , as it was a Measure of Government , to which his Majesty condeseended , to avoid the Discontent of Great Men .

3tio . And as to the pretence , That the King might as well evacuat the whole Right of the Sheriffship , by erecting New Shires within Old ones , as erecting Regalities ; or the King might evacuate the Sheriffs Heretable Right , by erecting the whole Lands within the Bounds of the Shire into Regalities . It is Duplied , 1mo . It is a vain Supposition , which probably cannot take effect . 2do . The erecting of a Shire within a Shire , were indeed to evacuat the Sihreffs Right ; but there is no consequence to be drawn from the present Case , that may infer such a Power : For it does not follow , the King may erect Regalitys within a Shire , ergo he may erect a a Shire within a Shire , for the interest and power of Sheriffs and Baillies of Regalitys are of quite different Natures , the Right of regalitys is a Right of Fie and property , as has been said , and has several other Priviledges in it which does not belong to a Sheriff , such as the Rights to Escheats and Replegiation with several others , all which are granted with express regaird and consideration , that the Lords of Regality are Proprietors and Superiors of the Lands contiained in the Rega●ity . 3tio . The granting of a Regality does not evacuat or exhaust the Sheriffs Jurisdiction for several other Rights and Priviledges both of Jurisdiction and Dignity , which belong to the Sheriffs notwithstanding the Erection of Regalities , such as , The publishing of Laws , Seeing the same put to Execution , The calling together the Shire upon certain occasions , The raising the Posse comitatus , And by the 97 Act Parl . 7. Ja: 5. in some Cases if the Officers of Regality be found negligent , being required thereto , it is Leisum for the King's Sheriff to put the Acts in Execution , even within the Regality , and if the Shireff shall attatch any party within the Regalities , the Lord of Regality cannot repledge without finding Caution to do Justice , and if he does not Justice within Year and Day , the Sheriff may proceed . Whereby it is evident , that notwithstanding the Feudal Jurisdiction of the Regality , with the Priviledges granted to it ; yet there remains very considerable Power and Authority to the Sheriffs . And the Defender needs not plead , That the King may evacuat obsolutely the Right of Heretable Sheriffships , but that the granting of Heretable Offices to Shireffs , does not divest the King of erecting Fews with the Priviledges of less or more of the Regalia , to his other well deserving Subjects , as his Majesty sees just .

As to the Pretence , That the Sheriff has a particular Reddendo in his Chartor for his Office with a particular duety for which he Compts yearly , and consequently that his Right is of Fie and not of naked office . It is Duplied , That the Sheriff and his Predecessors might have obtained their Chartors expede in what form they pleased periculo petentium : But that can never change the Nature of the thing , & there can never be a Fie without a Tenement either in Property or Superiority , or which does not in some manner affect Lands and Heretages : And therefore the Office of Sheriff is a naked Office , as has been said : Nor can the Sheriff by any constitution of Fie , be interposed betwixthis Majesty and his other Vassals .

5to . As to the pretence . That the Act of Parliament 1681 , asserting the Kings cumulative jurisdiction and power by himself , or any Commissionat by him to take cognizance of whatsomever case or Causes , notwithstanding of Heretable Offices being reschinded by the Act 1690. It does exclude his Majesties power of erecting Regalities within the bounds of Heritable Sheriffships .

It is Duplyed , that the recission of the foresaid Act 1681 , does not at all concern this Case ; for the reason why that Act was declared a grievance , and afterward rescinded , is explained by the Eight Article of the claim of Right , whereby it is declared , that the imploying the Officers of the Army as Judges thorow the Kingdom , or the imposing of them , where there were Heritable Offices and jurisdictions , and the puting the Leiges to death summarly , and without legal Tryal , Jury or Record , are contrary to Law . Whence it is evident , that as that Act was calculate to serve the design of granting Commissions to Officers of the Army , with powers which had no determined name of Office or jurisdiction in Law , but was to be exercised against all Law , and the common Principles of Humanity ; so it was only a grievance , and was rescinded upon that account ; but the jurisdiction of Regalities has a name , and certain limits and form of procedor prescrived and to be found in our law , and they have been granted since alse well as before , and did neither arise nor depend upon that Law ; and consequently neither the Regalities themselves , nor the Power to grant them can fall with it .

It was further Replied for Westfield , That whereas it is pretended , That the King has been in use to erect Regalities within Heretable Sheriffships ; The said Use and Power is Consuetudo facti , which has no binding Power or Warrand in it ; because , First , these Erections are but recent , and have not as yet attained to Prescription . 2do . The Custom is not General or Universal , which is another Character of a Binding Custom . 3tio . Such a Custom can never be a Rule ; because it is both contrary to Law , viz. the 43 Act Par . 11. Ja. ll . and private Right ; which though it were not a sufficient Reason to reduce all the Regalities that are granted long since , yet it is sufficient to hinder such an Incroachment to be established by a Custom and Rule ; especially seing no such Grant has ever been confirmed by a Sentence in judicio contradictorio . 4to . Such Regalities have not been acquiesced in , but there has Protestations been taken at their passing in Exchequer ; as particularly at the passing of the Regality in Athole , Protestations were taken by the E. of Argile and Broadalbin : And if it were necessar , it would be found , that these Erections owe their firmest Establishments to particular Transactions .

It is duplyed , that the Establishment of a Custom , does neither require that length of time which is necessary for Prescription nor Universality of Acts : Nay , nor judicial Sentences for Custom is defined to be diuturni mores consensu utentium comprobati , and is alse sufficiently established by a frequency of Acts , whether Judicial or extra-judicial in Ten Years as in Forty , provided that these Acts be not Clandistine and of small moment , but be so publick , so frequent , and so importent as to inferr a Presumption of the Knowledge and Approbation of the People and supream Authority , and it will not be contraverted , that in the matter of erecting of Regalitys , all these have concurred in the most eminent degree , not for the course of 10 , 20 , or 40 Years , but in every Kings Reign alse far we have records , not in one corner of the Countrey , but thorow the whole Kingdom , and particularly in the Shire of Murray , in favours of the Duke of Gordon and the Earl of Murray , nor in smaller and inconsiderable cases , great Lordships and Baronys have been erected and indued with these Priviledges , nor Clandestinly , being granted by His Majesty and his Predecessors past in the Courts of Thesaury and Exchequer , ratified in the high Court of Parliaments ; and the Sentences of the Baillies of the Regality have , and are daily brought under Consideration of the Lor●s of Session in processes , in the same manner as the Sentences of other ordinary Judges , besides many other instances which might be given for clearing how publictly and constantly such erections are granted and exerced : So that to deny custom , in this Case is against all Reason , and plain Conviction .

And as to the pretence , That somtimes Protestations have been used and trasactions betwixt Lords of Regality and heretable Shireffs . It is duplyed , That these instances are very few , nor are the Reasons of these Protestations known , Regalitys have been granted sometimes irregularly , as when there are Lands contained in the Grant , which do not belong to the Lord of Regality , either in Property , or Superiority , in which case Protestations may be interposed , without weakening the general Custom ; and however , a few Protestations taken sometimes officiously , and upon Reasons which we do not know now , but whereof never one was prosecut to this day , cannot overturn His Majestys prerogative so clearly established by the general Acquiescence and implyed Approbation of the whole Kingdom .

And whereas it was further pretended , That custom could not be established contrary to Law and privat Right , and that Regalitys are discharged by the 43 Act Par: 11 : Ja. 2. It is answered , That heretable Sheriffships are much more against Law , as shall afterwards appear , and Regalitys are not simply discharged , but discharged without deliverance of Parliament , and the present Regality has obtained a deliverance of Parliament . Viz . A Ratification , which by constant Custom appears to be all the deliverance requisite , seing no Regality ever obtained more , and though Ratifications do fall under the Act salvo ; Yet that cannot take place in this Case . 1mo . Because this Ratification is all that the Law requires , being a deliverance of the Parliament , as said is . 2do . The Sheriff can have no benefit by the Act salvo , because the Parliament could not have considered his Right , suppose he had compeared , seing his heretable Office was against Law , and therefore the Parliament could only have confidered the Kings , or the publick , interest , and neither the King , nor the publick are here complaining of Grants Regality .

It was furder replyed for Westfield , That there is no evidence either from the opinion of Lawyers or custome to Fortifie the Defenders alledgeance of Custome , and no regard ought to be had to the decision , cited from Hope , because the Parties are not mentioned , nor the ratio decidendi , nor is that Book of equal Authority with the Book called Hopes Minor Practiques . It is Duplyed , that that Decision is marked in Hope as several other Decisions are that are incontroverted , and although that work did not receive the last hand to persite it ; yet what he asserts in matter of Fact , being a person of undoubted integrity , ought to be believed not only as true in Fact , but to be our practice , which seems to be the design of the Observations , and Sir George M●kenzie in the forecited place does not only give his judgement in the terms of the Defenders alledgeance , but gives a practique of his time .

It was yet furder replyed for the Pursuer , That whereas Grant did alledge , that the Kings Priviledge of erecting of Baronies within Heretable Shireffships was a furder evidence of his Power to erect Regalities , that the difference betwixt Baronies and Regalities is vast , in alse far as the Barons had nothing but a small Right of pretension , which did not prejudge the Shireff , nor deminish his Territorium , but the Right of Baronies was co-ordinate and subordinat to the Jurisdiction of the Sheriffs , and owned by all our Acts of Parliament as such , and in effect the Sheriff is a superior Officer to the Baron ; So that the making of an Heretable Shireff doth no more hinder the making of a Barron , than the making of an superior Officer hinders the making of an inferior . And indeed the Barons had the most Ancient Fewdal dignitys and Jurisdiction , and the Shireffs were superinduced to them for better policy and Government of the Kingdom in their several districts , Therefore the Shireff is compared to the praeces provinciae amongst the Romans , and the Barons were the Suitors in his Court , so that the superinducing the Shireffs did not diminish the Barons Power , nor does the creating of Barons , being coordinat with and subordinat to the Shireff , diminish his Territory or jurisdiction ; and therefore there can be no Argument drawn from the creating of Barons to infer a Power of Erecting Regalities within the districts of Heretable Sheriffs , for in Regalities all things are just contrarie , the Right of Regalitie is privative of the Sheriffs jurisdiction . 2do . The Right of Regalities is so far from being owned by the Law , or as Co●ordinat or subordinat to the Sheriff that they are against Law , and particularly the foresaid Act Ja: 2d . and are revocked by all our Kings . 3tio . The Regalities was an incroachment upon the Shireffs , introduced first by the arogance and ambition of the Popish Clergy , who would at any rate be independent , even in matter of Jurisdiction , and whose example was probably Copyed by the greater Barons , nor is there any mention of Regalitys elder than the Reign of King Robert the 2d . although the Shireffs are of a much Ancienter date .

It is Duplied , 1mo . That the Reply does not at all answer or take off the Defence , but avoids it , and mis-leads the Mind by a pleasant account of Things , which with some Probabilities , contains some evident Mistakes . The Objection is , That the creating of a Barron , who has a most Ancient and certain Fewdal Jurisdiction is to creat a new Jurisdiction within the Sheriffs Bounds , which necessarly must diminish the Sheriffs Jurisdiction in as far as he can prevent him , but the King can creat a Barron , Ergo he can diminish the Sheriffs Jurisdiction ; which is inconsistent with Westfield's Alledgiance of Property : For it is equally against Law to take away any part of a Man's Property , as to take away the whole , although the Damnage be not equal : 2do . The terms of Co-ordination and Subordination , is meerly to evade in For it is certain , that the Jurisdiction competent to a Baron , is at least Cumulative ; and he can prevent the Shireff in such things as are contained in his Right ; & where he prevents , he is neither in Sub-ordination nor Co-ordination , but excludes : And the granting a Power to Prevent , does certainly diminish the Interest of him who could not be prevented before . 3tio . Westfield's Information given in to the Lords , does plainly acknowledge , That the Office of Sheriff was no right of Fie , but was a meer Office with Jurisdiction for better Government and Policy , like the Praeses Provinciae amongst the Romans , which was but a temporary Jurisdiction . 4to . As to the Pretence , That Regalities differ from Barronies , and are not mentioned till the Reign of Robert III . and were at first introduced by Churchmen , as an Incroachment upon Sheriffs . It is Duplied , That the great Barronies did anciently contain all , or the far greatest part of the Priviledges of Regalities , as can be cleared from the Statutes of K Malcom II . and K. William , as is above mentioned : There was indeed a Distinction betwixt the Greater and Lesler Barrons , as they had Priviledge More or Less in their Chartors : And when the Sheriffs began to incroatch upon the Barrons , it is probable they did assertain and establish their Rights by express Chartors , which gave rise to the Name and formal Erection of Regalities : But this was not to introduce a new Right , but to assert Priviledges anciently belonging to the Barons , contained in our oldest Laws : And the Caput 14. of the Statutes of King Rob : which Westfield alledges is the first expresly mentioning Regalities , does not speak of Regalities as a N●w Invention , but as a Jurisdiction that was then , and had been in use : So that it is most probable , that the Sheriff in several Points of his Office , and indeed in as far as he pretends to make his Office Heretage , does incroach upon the Barons , who had , as is acknowledged , the most ancient Jurisdiction , and that the Rights of Regalities is but asserting the Rights of the great Barons in the Kingdom of Scotland .

The Kings erecting of Stewarties within the Bounds of heretable Sheriffships , is a further evidence that the granting of such heretable Offices does not prelimit the King from erecting other sewdal Jurisdictions : And it does not import , that Stewartries were anciently of the Kings Property ; for it is evident that Stewartries comprehends the Kings Vassalls as well as Shires , and by ceasing to be in the Kings Property , they do not return to fall under the lieretable Jurisdiction of the Sheriff .

The erecting of a Burgh Royal within the bounds of an heretable Sheriff , is a further evident proof of His Majestys power notwithstanding of such Offices ; and Westfield is forced to recur to this shifting alledgance , viz The erecting a Burgh Royal , which makes the 3d . State of the Kingdom is peculiarly His Majesty's Prorogative , which must still be understood to be excepted in the Grant of any heretable Sheriffship ; whereas Regalitys derogat from the Kings Power and Casualitys .

But this is easily taken off , for Grant does alledge , that it is just alse evidently the Kings peculiar Prerogative , and must be understood excepted from the Grants of heretable Sheriffships , to erect Regalitys or which is the same thing , to creat Borrons with more or less of the regalia in their Chartors .

And as to The prejudice of the Kings Casualitys . It is jus tertii to the Sheriff , nor does the King grant any Casualitys to the Lords of Regalitys , but such as are disposed of every day .

In all this Debate Westfield does not adduce any good Reason to take off the Act 44 : Par. 11. Ja: 2. Whereby Offices given in Fie and Heretage are discharged , and declared void , nor is there a Latitude that they may be granted with deliverance in Parliament , nor indeed can there be any answer given , and this being an exception of Nullity against Westfield's Title , his pretensions fall .

It is further alledged for Grant , That his Regality cannot be simply quarrelled by the Sheriff , because his Right of Regality does comprehend a greater power than is competent to the Sheriff , and likewise the benefit of the Escheats and other-Casualitys to which the Sheriff had no Right , and therefore could not be allowed to reduce Grants Right simply .

It was Answered for Westfield , 1mo . That the right of Regality being jus individuum , he had good Right to quarrel it ; nor was he bound to divide and distinguish it . 2do . If the Defender should divide his Right of Regality , and maintain it only as to such Casualities and Powers as did not belong to the Sheriff ; Then this Gift would not only import a New kind of Office , but be a manifest Impingement upon the Act of Parliament , discharging the Kings Casualitys to be given away in Great , as of a Shire or Countrey-side .

It is Replied , That here again Westfield endeavours to escape in Words : For the Right of Regality is not so jus individuum , as that it has no parts , and may be quarrelled in part , and sustained in part , as if there were any new Priviledge contained in it , not usual in Regalities , or Lands not belonging to the Lord of Erection . 2do . The pretence that the Regality would be a new Office , if it were restricted by the Sheriffs private interest , is a meer Nicety , and it is no better pretence , that the granting of such Regalities would be a disposing of the Casualities in great , contrary to the Act of Parliament ; seeing it is evident that , that Act of Parliament does not exclude the Erection of Regalities , but concerns only such Cases where the Casualities are directly and immediatly disponed , not as the Consequences of any other Right or Erection : For as such the Casualities have been and are constantly disponed ; and they are not the Casualities in the Terms of the Act 1670. Parl : 11. Ja: VI . which Act discharges the giving away the King's Casualities in great , indeed , but the Examples are a whole Countrey-side , the hail Fews of a Prelacy , or the Casualities of any special Crimes , but not the Casualities of any Mans own Lands in property or superiority , which is not general or in gross but special , and conform to custome .

Westfield does urge as a considerable Argument , That this erection is of a Highland Regality , which he incinuats , is of more dangerous consequence than other Regalities .

To which it is Answered for Grant , that this deserves no manner of regard , being an alledgeance meerly injurious , and to plead favour . But 2. The Highland Landlords and Superiors being more rigorously tyed by the Laws of the Nation for their Vassals Tenents and Servants to present them to Justice , and to repair dammages done by them , it is most just and reasonable that they should have greater tyes upon them , and Jurisdiction over them , and on the other hand , the puting of a whole Country too absolutely under the Power of a Shireff , and that too , such a Shireff as Nature may turn up at hazard , may not only be unfit for the Country occasion , intestine disorders , but in many events may be unsafe for the publick Government , so that this Argument does rather conclude for the necessity of such Regalities .

It is therefore humbly expected , That seeing his Majesties undoubted Prerogative to erect Regalities , notwithstanding of the Hetetable Office of Shireffship , and that the saids Grants of Regalities do by the Interpretation of our Law , contain a Fewdal Jurisdiction with several other casualities ; whereas the Right of Sherriffship is a meer personal Jurisdiction , introduced not to overturn the Ancient Rights of the Barrons , who enjoyed several of the Regalia by the Law , and their Chartors , nor the Kings priviledge to grant them , but for better Government and policie . And seeing his Majestie has been in constant use to grant the same , or like Rights of Barronies , Stewartries or Burghs Royal , and that the said custom has been approven by a long constant and general acquiescence , and confirmed by the opinion of our Lawyers , and decisions without contradiction , till this Process : And also seeing that the drawing of this matter would make a strange couvulsion in the Nation , by exposing the many Rights granted by his Majesty and his Predecessors of this kind , and that Westfields Tittle and Right to the Heretable Office is manifestly against Law , and consequently null , To assoilzie Grant from the foresaid Process , and to reduce Westfields Tittle to the Shireffship , in so far as concerns the Lands contained in the Regality :