[Page] PLEADINGS, In some remarkable Cases, Before the Supreme Courts of SCOTLAND, Since the Year, 1661.

To which, the Decisions are subjoyn'd.

Cicero in Brut.

Nulla res tantum ad bene dicendum pro­dest, quantum scriptio.

EDINBURGH, Printed by George Swintoun,James Glen, and Thomas Brown: ANNO DOM. 1673.



FEw men can expect praise by Writing in this Age, wherein every man almost doth think himself roo'd of that praise which is given to others, and wherein he is thought to want wit, who will allow others to have any. Former Ages railed against such as wrote ill, but ours against such as write well; they were sometimes so unjust, as not to reward merit; but we are so malitious as to persecute it: Thus we can neither want new Books, nor deserve them; And it hath been well observed, that it would seem now, that none but mad men write or censure.

This I say, not to regrate my own fate, which hath been kind to my Writings beyond my merit and expectation; and though it had not, yet I am secure, by want of that merit which can raise envy: But I say it to regrate, that this should have stopt so many ingenious and learned men in our Profession, from illuminat­ing our Law, and from informing our Country-men. The Laws of other Nations are opprest, but ours is starv'd. This made me adventure to write these few sheets, and I wish that censure which [Page] is so much feared by others, might blunt all its edge upon me; and that I might, like that noble Roman, by leaping into this gulf, secure my Countrey against this Plague.

This way of writing hath been very happy amongst Strangers, and was not minded hitherto by us, and what way of writing is preferable to that, which hath been successfull, and yet is new? But my design in choosing this way of writing, was to inform strangers as to our way of Bleading in Scotland, to form to my self a Stile, and to give me an easinesse in pleading; for since that is my dayly Employment, it should be my greatest care, Nihil tantum ad bene dicendum prodest, quantum scriptio, sayes Cicero, the greatest Master of that Art. I had, by pleading whilst I was yet very young, wrapt my self into errors; which could not be reform'd in the croud and noise of businesse, and there­fore I resolved to employ some serious and solitary hours for my own recovery; and that I might obliege my self to the greater exactnesse, I resolved to print what I wrote, hoping, that thus the fear of censure would over awe my lazinesse: By printing them, I likewise design to know my enemies, and my faults, such as censure maliciously will inform me of the one, and such as censure justly will instruct me in the other.

I designed at first, to have printed many moe, but I thereafter considered, that if these pleased not, they were too many, and if they did please, it was easie to add: and I resolve to correct in the last, what shall be found to be justly censurable in the first.

In three of those pleadings, (viz 2. 3. 7.) I have mingled with my own Arguments, the Arguments of such as pleaded with me; In the rest, I have used only my own; those three I wrote to be Patterns, because they were not particularly mine; those which are par­ticularly my own, I wrote for my own divertisement, and if they bear any proportion to their fellows, they may not only satisfie the World to which they go, but (which is it may be harder) the Author from whom they came.

[Page] I have been oft asked two contrary questions; one was, How I diverted my self, during all our six vacant Moneths? and by others, How my Employment gave me leisure to write? To answer both at once, I conceive that a man in two afternoons of each vacant week, may write twice more then ever I sent to the Presse; and he must be very busie, who hath not these to spare.

When I was too young, to write in my own Profession, my love to my Countrey tempted me to write Moral Philosophy, and to ad­venture on a Play and Poem; but now that I find, that our Countrey-men could be happy enough in these, if their inclinations were not lesse then their ablities, I have abandoned those Employ­ments, and the spring of my Age being past, it is fit those Blossomes should ripen into Fruit. I promised formerly, never to appear in print, save in my own Employment; to which pro­mise I have, these five years last by past, been very faithfull; and this being my first Essay in it, some allowance is due to a beginner.

I must confesse, that many in this Kingdom could have ex­ceeded my poor endeavours, but it were unreasonable for any man, to refuse to fight for his Countrey, because another could fight better. And I rather conclude, that others need not be dis­couraged, though I meet with no applause; whereas, if any be allowed me, their greater Parts may expect a greater measure of Fame; and as I have been very kind to all my Countrey-mens Productions, so I shall be extreamly pleased to see my self out-done in my Countreys service. I designed to let Strangers know how we plead in Scotland, and therefore it was not fit, that I should have used here the English Language. I love to speak as I think, and to write as I speak.

No man should be vain, because he can injure the merit of a Book; for the meanest Rogue may burn a City, or kill a Hero; where­as he could never have built the one, nor equalled the other. [Page] And I confesse, that an ordinary Wit may discover faults in a better Author then I pretend to be: For the Writer being intent upon all, cannot lay out all that industry upon every line, which amalicious Critick can; who (like the Wasp) fastens still upon the sore: But a greater Wit then they said,

Ubi plurima nitent in carmine, non ego Paucis
Offendor maculis—

Malice likewise and observation can easilier fix upon a printed Pleading, then upon what flyes away from a current Speaker: And a Discourse, animated by the voice and action of a gracefull and sprightly Orator, will supply very much of that force and beauty, which a cold and indifferent Reader will require in what comes from the Press.

I am not concerned in the reception of this Book, my cares end with the printing: and thoughts in an Innocent breast, are as secure as men are, when storms grumble and roar about the strong Castle where they are lodged. Few ever displeased, and none ever pleased all. Such as censure too severely those sheets, are either of my own Profession, or not; those who are not, may fear to be thought ignorant; those who are, to be thought emulous. But having now confined all my recreations to my own Employment, if I cannot please others, I will at least improve my self. But it would [...]bate very much the passion of Authors and Criticks, of Advocats and Clients, if all would seriously weigh my beloved Verse,

Hi motus animorum, atque haec certamina tanta,
Pulveris exigui jactu compressa quiescent.


  • WHat Eloquence is fit for the Bar. An Essay. Page. 1
  • A Pleading translated out of French, to inform such as understand not that Language, of the way of Pleading there. 20
  • The Authors Answer to the former Pleading, there being no Answer to it extant in the French, (with additions, pag. penult.) 26
  • How far a man may use his own, though to the prejudice of his neighbours. 34
  • Whether a Clause prohibiting to sell, will prejudge Creditors. 40
  • Whether Tax'd-wards be lyable to Recognition. 52
  • How far the Borrower in commodato aestimato, is lyable, if the thing be lost, vi majore. 62
  • How Fury, and lucid Intervals may be prov'd. 69
  • In what case a Sentence may be reduced, by a Reprobator of the depositions of the Witnesses whereupon the Sentence was found­ed, and by what probation Sentences may be reprobated. 78
  • How far a Disposition, made by a man, in favours of his Lady, of his whole Estate, is reduceable, as done in lecto aegritudinis. 91
  • How far restitutions by way of Justice, are prejudged by Acts of Indempnity. 104
  • How far a person unjustly forfeited and restored, may repeat Annual-rents from the Intrometters. 113
  • [Page] Whether Ships taken after they have carryed Contraband goods, can be declared Prize, (with additions, pag. last.) 120
  • Whether it be free to all the Lieges to trade with Forreigners, or if this Priviledge be only competent to Burghs-royal. 131
  • Whether a Novo Damus secures against preceeding Casualities. 144
  • Whether a Contract entered into by a Minor, who averr'd himself to be Major, and swore never to reduce, be revocable. 153
  • Against Forfeitures in absence. 164
  • Whether passive complyance in publick Rebellions, be punishable as Treason. 172
  • For Maevia, accused of Witchcraft. 185
  • For Titius, accused before the Secret Council for beating his Wife. 198
  • How far Minors may be punished for crimes. 2. Whether Com­plices may be pursued before the principal Party be found guilty. 3. Whether Socius criminis may be received awitnesse in Riots and lesser Crimes. 207
  • An Answer to some Reasons printed in England, against the over­ture of bringing into that Kingdom, such Registers as are used in Scotland. 221


Pag. 3. lin. 21. for Silogisticè, read Sylogisticè. pag. 8. lin. 17. for i [...]terta, read i [...]certa. Pag. ibid. lin, 27. for animated by gain, read animated by conscience, pag. 9. lin. 14. for effectation, read affectation. pag. ibid. lin. ibid. dele the word all. Pag 25. lin. 5. read [...] meer mommeries. pag. 46. lin. 4. for lib. c, read lib. eodem. pag. 47. lin. 10. read not [...]ailzies. Pag. ibid. lin. 20. for petitus, read penitus. pag. 65. lin. 5. read fortui [...]s. pag. 75. lin. 23. for quem, read quam. pag. 96. lin. 10. for effect, read, affect. pag. 109. lin. 20. for ressamen, read residuam. pag. 122. lin. 30. read must not be lawfull. pag. 151. for by the Donator for Gifts of E [...]cheats and Non-entries, did take place according to the latter, Read of Gifts of Escheat and non-entries, which were restricted according to the latter. pag. 174. lin. 17. for againg, read against. Pag. 187. lin. 15. read so cruel a revenge.

Read still violated, for violat; confiscated, for confiscat; ne­cessary, for necessar; ordinary, for ordinar, and the like.

What Eloquence is fit for the Bar. AN ESSAY.

ELoquence is that Art, by which the Orator at once convinces, and pleases his hearers; and by which he gains same, and obedience. Monarchs govern our Estates, but the Orator governs our Wills, and Inclinati­ons; the Souldier may conquer our Lands, but the Orator our Reason; and whilst these owe their empire to multitudes of men, and accidents, he do's alone share in the glory of his conquest. Amongst all such who stand Rivals for this great honour, the Advocat seems to have the fairest pretentions; for a Courtiour may by Eloquence, charm a Lady, he may raily, and say nothing with a Bon grace: a Preacher may in his retirement, sorm a Discourse, which after much premeditation, meets with no opposition; but the Advocat must upon Subjects infinitely various, make present replyes to what he did not expect. We come to Church convinc'd of every thing our Preacher is to say, we are the converts of his Theme, and not of his Discourse: but at the Barr, Justice do's oftimes side so equally, that a thousand times the hearers do confess themselves still con­vinc'd by the last speaker. What can the world bestow above [Page 2] what it allowes the Advocat, as the reward of his noble pains? What is so desireable, as to be a Sanctuary to such as are afflicted, to pull the innocent from the clawes of his accuser, to gain bread for the hungry, and to bring the guilty to a scaffold? What is so noble as to be depended upon by such as are in prosperity (for Client and Depender, are the same in all Languages) to be complemented by such as are beau­tifull, and admir'd by such as are learned? And if he design to flatter his vanity, would it not charm him to see a crouded audience, stand in a profound silence, with countenances which do mark longing, and reve­rence, to see every man look with amazement upon his neighbour, and all upon the speaker; whilst he makes his learned Judges, bow under the weight of his well exprest Arguments; and when the Discourse is ended, to have all who see him salute him with respect as he passes by, and the City choose him for the subject of their kind discourses?

Some Divines and Philosophers have oftimes prov'd so injust to the Law it self, as to think it too dull and flat a Science to affoord such subtile reflections, as could be the foundati­on of an accurat Debate: To whom I design modestly to return no other answer, then that men cannot judge well what they do not throughly understand. Thus common eyes discover no difference betwixt the starrs, though to judicious and learn'd persons, they appear in their distinct classes: I wish they would consider, how much the actions of men differ, how many circumstances attend every one of these, and how they are varied by these circumstances; if 24 Letters can by their several conjunctions, make up such a swarm of words, certainly thousands of Statutes, Customs, and Cases, must affoord much room for new and subtile conclusions; especially since these have been subtiliz'd and cultivat for many ages, by the finest Spirits of the world, who have been drawn [Page 3] to prefer this to all other employments, and to refine themselves to all imaginable hight in it, by the joynt hopes of glory, applause, preferment, money and emulation:

—Stimulos dedit aemulavirtus.

I doubt not but there are many, who will think that Elo­quence is not allowable at the Barr, since those who are to be convinced there, are old and reverend Judges, whose severe Judgments are not to be moved by a pleasing discourse, but by solid reason, old Age being little taken with those flourishes, which it cannot practise: and that though where passions are to be excited, as they are by the Pulpit, and Theater, or where States-men endeavour to reclaim a mutinous multitude, There, Eloquence is not only allowable, but necessary (Eloquence being the true key of the passions) yet, since no passions are allowed in judging, and the object of that ex­cellent Science, being truth, and not humor, Eloquence should not be allowed in discourses there: And I imagine it will be objected to me, that at the first institution of our Senat, It was appointed by an Act of Sederunt, That all Argunning (which term was us'd in that Age for arguing) should be Silogisticé, and not Rhetoricé.

To which my answer is, that Eloquence do's not only con­sist in trops, figures, and such extrinsick ornaments, whereby our fancy is more gratified, then our judgement, and our dis­course is rather painted then strengthned; but when I mean that an Advocat should be eloquent, I design thereby, that he should know how to enliven his Discourse with expressions suitable to the Subject he treats; that he should choose terms that are significant, and which seem full of the thing which they are to express, and so lodge his reasons handsomly; though when his Subject looses him from the strict terms of a Statute, or Authority, and that he is to debate upon probable Theams, to enquire into publick utility, or to enforce or answer pre­sumptive Arguments, he may use a more florid and elegant [Page 4] Stile: his great design is to conciliat favour to his Clients Cause; and sure, caeteris paribus, even the learnedst and most severe Judges, love to be handsomly informed, and he must be very just, who is not somewhat bribed by charm­ing expressions. But that the greatest part, of Judges are taken with that bait, is most undenyable; and as in Mariages we find, that even those who desire rich Portions, are yet pleased to have a beautiful Mistris, and the severest man alive will be content to abate somewhat of the Portion to gratifie his fancy; So, I am sure that a Papinian or Ulpian, would, when the scales seem to stand even, encline to that side upon which Eloquence stands. Eloquence raises the attention of a Judge, and makes him follow the speaker closely, so that nothing which he sayes in favour of his Client passeth unregarded; whereas another may say what is very reasonable, and which if it were notic'd, might weigh much; and yet the Judge who is not allured to hear attentively, may easily miss it.

I may likewayes add, that Eloquence thaws (like the Sun) the speaker himself, who when he is warm and pleas'd, will thereby have his invention stirr'd up, and his memory and all his faculties opened; by which many excellent and ap­posite reasons may be suggested to him; as we see the Earth (when warm'd) casts up many new and profitable fruits and herbs, as well as flowers; whereas, we may dayly observe, that a stiff and cold pleader do's omit oftimes, even what he knowes. By the same Eloquence also, the hearers being warm'd and thaw'd have their Judgements thereby open'd, and doe receive more easily impressions of what is spoke; and I conceive Eloquence the fitter for Advocats, that others think it should be banish'd as that which may bryb and corrupt Judges: and methinks it should be pardon'd some little dangerousness that way, since it pleases so much another; nor can I think but that Providence has ordain'd it for [Page 5] the Barr, to soften, and sweeten humours, which would els by constant sticking at meer Law, become too rigid and severe; and to divert and ease the Spirits both of Judges, and Advocats, which are too much upon the rack, and bended for the service of their Countrey.

As to our Act of Sederunt, which appointed, that all pleading should be sylogisticè, I need not reflect upon the igno­rance of those times, which was very excuseable amongst us, since it did at that time blind even Italy and France, who do now smile with pity upon the customs and productions of their countrey-men in that Age: but I conceive, that our Session having been at first constitute of an equal number of Church-men and Laicks, and the President being an Ecclesi­astick, these Church-men having the advantage of Learning and Authority, did form that Act of Sederunt according to their own breeding, by which they were tyed in their Theology-schools to debate by Syllogismes; but after-ages having found this upon experience to be very unfit and pedantick, they did not only suffer that Act to run in desuetude, but allow'd of this auguster and more splendid manner of debating, which is now used. And therefore I conclude, that not only is that way not warranted by the Authority of that Act, but that it has the less preference because of that Act; for, if that Act had not been made, we might have been induc'd to believe that such a way might take; but now since experience has reform'd us from it, and since even the Authority of a Statute could not maintain it, we must think it was not fit nor suitable, as indeed it is not, if we consider these few remarks.

All Sciences have an expression which is suitable to them; the Mathematicks require demonstration, and discover them­selves to the eye: Medicine, and natural Philosophy require experiments; Logick, Metaphysick (and alas now Theology) must wrestle by syllogismes; but the Law argues by a discourse, free, and unconfined, like those who debate from its prin­ciples. [Page 6] It is the nature of a syllogisme to have the subsumpti­on in the second proposition; but in pleading, the matter of fact must come first, for it stands in the state of the case, and therefore though it be proper for Lybells (which are but a Sylogisme) yet it suits not with a Defence: and it were very ridiculous, and impossible, to wrap up a long story, many circumstances, presumptions and probabilities in a syllogisme; and oftimes there are many defences propon'd and joyned together. The most ordinar and most allow'd way of arguing in Law is by similies, instances and parallels, and it is improper to drive those into syllogismes: but he will best confute this way of arguing by Syllogismes, who will sit down and plead any of the causes I have set down in a Syllogistick way, which if any man do, I shall renounce pleading, except he take syl­logistick debating in a very large sense; As for instance, in Kenedies case, the pursuer behov'd to say, He who is guilty of forging Writes, should be hang'd; but so it is, Kennedy has done so; ergo, The Defender behoved to deny the minor, and then the pursuer behov'd to say, he who is burden'd with such and such presumptions, is guilty of falshood; but Kennedy is guilty of these; and there he behov'd to insist upon all the indirect Articles or Presumptions: but how should the Defender answer all these by a distinguo? or if this way were introduced, how little would this shorten Debates? and are any creatures alive so litigious as some Divines, and Philosophers, who debate only by Syllogismes? and so little do Syllogismes contribute to clear a Debate, that both in their Schools, and Books, such as use Syllogismes must leave that way, and enlarge themselves by discourses, when the debate growes warm, and intricat.

Every man in pleading, gratifies his own genious, and some of all kind find equall success, and applause; but it has been oft debated, whether pointed and short pleading, wherein the Speaker singles out a point, and presses it, or full and [Page 7] opulent pleading, wherein the Speaker omitts nothing which may prove advantagious, be preferable: each side has its ex­amples, and patrons.

The full and copious way pleases me; for I not only find that to have been used by Demosthenes, and Cicero, but Plinius assures us, that it was used by Caesar and Pompey. At first no man was stinted amongst the Romans in his pleading, and when they were confined by Pompey, qui primus fraena imposuit Eloquentiae, the pursuer was allow'd two hours, and the defender three; but this being found thereafter too narrow; Celicius did allow the pursuer six houres, and the defender nine: Nor can a Pleader be interrupted in France (where pleading is in its greatest perfection) though he speak three full dayes; and if it be a fault, it is peccatum felicis ingenij, the error of great Witts, whereas short pleading is common to such as pretend to be great Spirits, and to such as really are meer dunses. Such as use to say much can contract their discourses, but few who are used to say little, could say much, though they were willing; and copious pleading is called ordinarily a fault, by such as have not the wit to commit that crime themselves. We see that in nature, the largest bodies are ordinarily strongest, the largest fruits most desired; and many stroaks do best drive in the wedge. Nature has produc'd many things for meer ornaments; and God has in his Scriptures, us'd Eloquence and Rhetorick on many occasions. But there are two Arguments which have determined me to this choice, the first is, that a short Pleader may leave things unclear, and so wrong his Client; whereas a full Plea­der can only burden too much his hearers, and so wrong only himself. A narrow, and starved discourse, is like those slen­der and small costed bodies, which allow not sufficient room for the noble parts to exercise their functions, Non enim amputata oratio, & abscissa, Sedlata, magnifica, excelsa, tonat, fulgurat et omnia evertit. The next is, that even where [Page 8] there is but one Judge, it is uncertain which of all the Ar­guments will convince him, but where there are many, as with us, it is very well known to such as discourse in privat with them, upon what has been pleaded, that some fix upon one argu­ment, some upon another: the best Lawyers differ oft in opinion upon debatable points, and it is great vanity for any Pleader to think, that he can certainly know what will take, and what not; this was really not an Appologie for my error, but the motive of my choice, and I find it to have been former­ly used by Plinius the younger, (the greatest Pleader of his Age, and whose Epistles do of all other books best inform us how to plead) this great man in his 20 Epistle tells us, that Regulus said to him, Tu omnia quae in causa putas exequenda, ego jugulum statim video, hunc premo, respondi, posse fieri, ut genu esset, aut tibia, ubi ille jugulum putaret, at ego qui jugulum perspicere non possum omnia pertento. But I will not with him adde, Neque enim minus imperspicua, interta fallaciaque sunt judicum ingenia; Quam tempestatum, terrarum (que) adjiciam quod me docuit usus, Magister Egregius, aliud alios movet, varia sunt hominum Judicia, variae voluntates, inde qui eandem causam simul audierunt, interdum idem, saepe diversum, sed ex diversis animi motibus sentiunt, Our Colledge of Justice is but one body, in which the Senators are the judicative faculty, and the Advo­cats the inventive; and as the judgement is too rash, when it concludes before the invention has represented to it all that can be said pro, and con, even so Judges should not decide till the Advocat (who is animated by gain, applause, and custom to find out, all can be said) do first lay open all the reasons, and inconveniences which he has in his retirements prepar'd: from which also I conclude, that seing the Advocats are in place of the invention, that those Advocats who have the fertilest nvention, are most fitted for that excellent employment.

When I prefer copious pleading, I design not to commend such as are full, but of Tautologies, and Repetitions, who [Page 9] moe Periods, then Arguments, and who, providing they find many words, care not much how to choose them. I love a discourse which is beautiful, but not painted; rich but not luxurious; harmonious but not canting. I am not for many Replyes, Duplyes, and Triplyes, but for one, or two strong, full and clear discourses, and to lengthen those, by streach­ing out those unnecessar plyes into one just measure. Nor do I love long pleading in the Utter-house, where new decisions are not to be made, but where the old should be follow'd; and where the multitude of attenders do require a speedy dispatch, and in the Inner-house it is only to be practised where the cause is new, and fertile, and when the Judges desire a full information; for it is most unfit to vex an unwilling Judge, who will think all that he loves not to hear, meer effectation, and vanity: but envy must not want its objections, and where it finds not a fault, it makes one out of the next vertue; when a man pleads fully, it terms that luxuriency, and when he pleads shortly, it will have that pass for ignorance, or lazinesse: and so in­consistent are backbite [...]s not only with the truth, but in what themselves invent, that I have heard one and the same Plea­der, blam'd for a too luxurient Pleader by some, and for a lazie Pleader by others, because in the Inner-house he used the full allowance, and in the Utter-house he thought it impertinent to make speeches, where a short Defence is only necessary; for either the point there is clear, as ordinarily it is, and then it is ab­surd to enforce a principle; or it is dubious, and then he gets the Lords answer, and may be full in his information; and why should pains be taken to vex a Lord with debate who is not to decide?

Far be it from me to prescribe magisterially, a form of pleading to others, but I love to tell freely my own opinion, and if others did so too, we should shortly, from comparing Notes, come to know what method were most allowable.

In pleading amongst the Ancients, and yet amongst the French, there was still a Preface, and Epilogue. Amongst them, [Page 10] he who spoke first, endeavoured to establish his own opinion, and to anticipat what he thought might be urg'd by his Adver­sars; but with us the Pursuer relates only the cause, which he is only allow'd to adorn with a pertinent representation of such circumstances, as may best, either astruct the justice of his own pursute, or obviat unnecessary objections in his Op­ponent, but without mentioning any thing pro, or con, in jure. Andyet I have heard the case so prudently stated, as that thereby the Defender was precluded from many Defences he design'd to propone; for amongst able Pleaders, most of what is debated, arises from a difference rather in fact, then Law; and it is a great affront for one to plead, in Law, a long discourse, which the other will grant to be all true, when the discourse is ended: And yet I have heard some con­cede all was said, and seem to difference the present case from the case pleaded, when indeed there was none, but when this was done meerly to evite a discourse which could not be an­swered. After the pursuer has stated his pursute, and en­larg'd himself upon all the favourable circumstances which we call the merits of the cause, the defender propones his de­fence, but urges it little, till he know if it be contravert­ed; but if the relevancy of the Defence be contraverted by the Replyer, in a full discourse, then the Duplyer makes a sull answer, and ordinarily these terminat the debate, and after that the discourses become too thin and subtile, and the Judges weary, albeit some causes because of their intricacy, or of new emergents, require moe returns.

In these Replyes, or Duplyes, our custom allowes a short Preface upon solemn occasions, in which the rule seems to be, that these Prefaces should not be too general and such as are applicable to any Debate; as when the speaker excuses his own weaknesse or recommends justice to the Judges, or such com­mon places; but it should run upon some general principle, which though it be not a concluding Argument, yet tends [Page 11] much to clear that which is the subject of the Debate: as in the French pleading I have translated, the Pleader being to inforce that a civil death purifies the condition, Si sine liberis decesserit, he begins with a Preface, which shewes, that the Law has a great empire over nature, and plyes its events to its civil designes; whereas I being to plead the contrair, I do insist to clear in generall, that matters of fact, escape the re­gulation of Law, and that Law is ty'd to observe nature.

The Discourse it self do's consist of these Arguments, where­by the Defender maintains his Defence, or of these Answers by which the pursuer elids those Arguments; and to range them appositly into their own places (so that such Argu­ments as have contingency, may be set together) is a mark of a clear, and distinct wit: and when Arguments are so rang'd, each of them adds strength to another, and they look like men well marshal'd into distinct troops; whereas Arguments stragling out of that place where they ought to have been plac­ed, seem unpleasant, and irregular, and will hardly be ex­pected where they are; for instance, in pleading against the Viscount of Stormont, all the Arguments which can be press'd, are either such as endeavour to prove, that the clause of Stormonts Infeftment is contrary to the nature of Dominium or Commerce, and after that the Pleader had past first Dominium, and then Commerce, to return to those Arguments, which arise from the nature of Dominium, were irregular; for that were to return to show what he had forgot. And from this I con­clude in reason, that all Arguments founded upon that same general principle, should be pleaded together, and in the ordering of these generalls, I would choose to begin with those which clear best either matter of fact, or which tend most to illuminat the subject of the discourse; and thus the controversie in Stormonts case, being, whether the Proprietor of tailzied Lands, may alienat these Lands if he be prohibit to alienat by the first Disponer, or at least if they may be comprys'd from [Page 12] him; the first classe of Arguments to be urg'd, should be these which tend to prove, that this Prohibition is inconsistent with the nature of Dominium, and Propriety, for these clear best the nature of Propriety which is the chief subject of the debate.

He who answers, uses with us, to repeat the Arguments which he is to answer all with one breath; before he begin to make distinct answers to them; and this proceeds as I con­ceive, from the Aristotelick way of arguing in the Schools, wherein he who maintains the Thesis proposed, must repeat the Argument, before he answer it: this method I love not, for it consumes unnecessarily much time, and sure it wearies Judges to hear the same Argument twice, yea thrice, repeat­ed; for first, the enforcer do's repeat them, then the ans­werer do's repeat them, both generally at the entry of his dis­course; and therafter he must repeat each Argument when he is to make a special answer; and I should think it much more natural to repeat and answer each Argument a part, ordinarily the answerer follows in his answers the method of the proponer; yet sometimes he chooses rather to classe the arguments as he pleases, and to answer accordingly. If the Defender design to answer the Arguments brought against his Defence, and to adde new ones to astruct the reasonableness of his pursuit, he uses first to urge his own Arguments, and then to answer what is alleadg'd for the Defender.

Whether the strongest, or weakest Arguments or Answers should be first insisted on, was much debated amongst ancient Orators; some thought the weakest should be first urg'd, be­cause the Judges were then freshest, and might possibly by weariness slight what was delay'd: others thought fit to leave with the Judges the strongest Arguments, that they might be fresh with them when they were to decide: this I think is arbitrary, and they are but weak Judges, who do not weigh all equally; but I think it adviseable for a young Pleader, [Page 13] to urge the strongest Arguments first, that he may thereby conciliat favour to himself, and raise the attention of his Judges, and in all cases where the cause seems unfavourable the strongest Arguments are first to be used, for the same reason, and there seems little reason to leave the strongest Arguments last, if the Cause be not presently to be decided: but where many Answers are to be made to one Argument, the weakest is ordinarily first made and as it were overlye, but the strongest is reserved last, because it is most to be insisted upon: and I think it most natural to urge the weakest Arguments first, be­cause our discourse should like our selves, and like our studies, grow from strength, to strength, and from less to more, but sometimes one Argument grows from another, and then there is no place to doubt, and alwayes the most mysterious Argument is to be left last, because it is to be presumed, that then the cause is best understood, and mysterious Arguments come to be most in season, when Judges have fully master'd the case.

The Epilogue with us is ordinarily, In respect whereof the Defence ought to be admitted, or repell'd, &c. But in some solemn cases, the Pleader may recapitulat shortly his strongest Arguments, or may urge the favour and merits of the Cause; and I should love to press this merit rather here then in the preface; for favour is but an accessory of Justice, and the con­sequent should not preceed its cause.

Action, was of old one of the chief ornaments of Speech, un­der which was comprehended, gesture, and voice, all which were accomodated to the Orators design, when they spoke to multitudes of ignorant people, to whom, tears or ejaculations pleaded more, then reason did; for that they understood better, as more obvious to that sense by which they were govern'd: but now the world is become too wise to be taken by the eyes, albeit I confesse these adde grace, though not force.

[Page 14] With us, action is possibly too violent, which I ascribe both to the violent temper of our Nation, prefervidum Scoto­rum ingenium, and to the way of our debate, for Fire sparkles ordinarily from the collision of two bodies, one against another, some debate for interest only, some for honour, but Advocats for both; yet hardly can he raise passion in others, who shows it not himself; and all men presume, that he who is very serious, and earnest to convince others, is the convert of his own Argu­ment. I confess, that passion do's disorder very much the kindled speaker, and that he can hardly clear well his discourse who is himself perturb'd, and we know the design of an angry man no more, then we can see clearly the bottom of troubled waters: and therefore it were very advisable, that hot and cholerick spirits, should calm themselves before they adven­ture to enter upon a serious debate; but such as are bashfull are the better to be warm'd, and to loose prudently, a little of their indiscreet modesty; melancholick persons likewayes who are ready to loose themselves in their wandering thoughts, need to be a little fretted, for thereby they become intent, and finding themselves somewhat piqu'd, they are gather'd into their subject. He who fears to be interrupted, will ordinarily stammer, for he will be more busie in thinking upon the being interrupted, then upon what he is to say; and there, passion do's well also, seeing then he considers nothing but what he is speaking.

Railing, is of all other qualities, the worst in a Pleader, for it makes men judge that his cause needs it, when he rails against his adverse Client, and that he finds himself worsted, when he rails against his adverse Advocat: but some times he is obliged to found upon matters of fact, which though they have much of reflection in them, yet are necessar truths; and sometime the Law by which he pleads, obleidges him to terms, which may seem rude to strangers, and in both these cases, not to be severe, were prevarication; though I have known Advocats [Page 15] very innocently condemn'd for calling the late times Rebellion, and such as were forfeited Traitors, though in that they spoke their art, and were not obliged to speak their thoughts: and there are few Clients, who when they loose the Cause do not discharge a great part of their fury, upon these Advocats by whom they conceiv'd themselves overthrown.

Too subtile speading convinces few, because few understand it, and it is applauded by few, because few can reach to the practice of it; and in young men it may be interpret to be but affectation, or notionalnesse, though in such as have by long practice establisht their own reputation, it gains glory. Many citations also are to be avoided by all in pleading (though they are necessar in writing) especially in young men, for in these they are thought but common place-wit; and yet young men do most use that way, because they think thereby to supply their own want of authority; and because they know notmany parallel cases, and are not yet so intimatly acquaint with their subject, as to draw Arguments out of its retired intrails. Many parentheses are to be avoided, for they interrupt the threed of the discourse, and make it knotty, and mysterious, though these weeds grow ordinarily in the richest soil; and are the effects of a luxuriant invention. Frequent repetition of the ordinar compellations, such as my Lord Chancellor, or my Lord President, are to be likewayes shunn'd.

Before I propose what Phrase, or Stile is fit for a Pleader, it is fit to tell that the two usual stiles known by distinct names, are the Laconick or short sententious Stile, and the Asiatick, or profuse and copious Stile; the first was used by the old Roman Legislators, as is clear by reading the Digests; but when the Empire was transfer'd to Constantinople in Asia, the Empire changed its Stile with its Seat; and we find that Profluvium asiaticum in the Codex, and Novels. Yet all the Grecian and Roman Pleaders, even in their purity, us'd a full copious Stile, as is clear by Demosthenes, Cicero, and others, [Page 16] and though Legislators or Judges should use the Laconick, yea the other must still reign at the Barr. A Barrister like­wayes should rather study not to want words then to stick at the choosing fine ones, and the generality of hearers are more displeased at a gap, or breach in a discourse, then can be re­compens'd by a multitude of these fine words or sentences which occasioned these gaps, whilst the speaker waited for these delicat words which he found after that stop; and as I have known many admir'd for a fluent speaking of pittifull stuff, so I have known others loose the reputation of Orators by studying in their greener years too much finenesse; and I would advise my friends who begin to speak, first to study fluency, and when they are arriv'd at a consistency there, they may easily refine the large stock they have laid together.

Many who are not friends to the Barr, inveigh much at the canting terms which they say is us'd there; but these do not consider, that every Science has its particular terms, and it were pedantry to substitute others in their place; and as a man looks ridiculously in a womans habit, or a woman when attir'd like a man; a Souldiour under a Gown, or a Church-man in buff; So it is as ridiculous to hear a Member of Parliament or a Coun­cellor speak of affairs in terms of hunting, as it is for a Lawyer to speak in his terms of other things; and I laugh as much to hear Gentlemen speak in their canting terms of hunting, hauk­ing, dauncing, as they can do to hear me speak in the idiom of my Trade: and to speak like a Gentleman at the Barr, is to speak like a pedant; pedantry being nothing, but a trans­planting of terms from what they were fit for, to that to which they are most unfit, and I love equally ill, to hear civil Law spoke to in the terms of a Stile-book, or accidental Latin, (as is most ordinar) as to hear the genuin words of our Munici­pal Law, forc'd to expresse the phrases of the Civil Law and Doctors.

[Page 17] It may seem a paradox to others, but to me it appears un­denyable, that the Scottish idiom of the Brittish Tongue is more fit for pleading, then either the English idiom, or the French Tongue; for certainly a Pleader must use a brisk, smart, and quick way of speaking, whereas the English who are a grave Nation, use a too slow and grave pronunciation, and the French a too soft and effeminat one. And therefore, I think the English is fit for harranguing, the French for complement­ing, but the Scots for pleading. Our pronunciation, is like our selves, firy, abrupt, sprightly, and bold; Their greatest wits being employ'd at Court, have indeed enricht very much their Language as to conversation, but all ours bending them­selves to study the Law, the chief Science in repute with us, hath much smooth'd our Language, as to pleading: and when I compare our Law with the Law of England, I perceive that our Law favours more pleading then theirs does, for their Statutes and Decisions are so full and authoritative, that, scarce any Case admits pleading, but (like a Hare kill'd in the seat) it is immediat­ly surprys'd by a Decision, or Statute. Nor can I enough admire, why some of the wanton English, undervalue so much our idiom, since that of our Gentry differs little from theirs, nor do our commons speak so rudely, as these of Yorkshire: as to the words wherein the difference lyes, ours are for the most part, old French words, borrowed during the old League betwixt our Nations, as Cannel, for Cinnamon; and servit, for Napkin; and a thousand of the like stamp; and if the French Tongue be at least equal to the English, I see not why ours should be worse then it. Sometimes also our firy temper has made us for hast, expresse several words into one, as stour, for dust in motion; sturdy, for an extraordinar giddiness, &c. But generally, words significant ex instituto, and therefore, one word is hardly better then another; their Language is invented by Courtiers and may be softer, but ours by learn'd men, and men of businesse, and so must be more massie and significant: and for our pronunciation, beside what I said formerly of its be­ing [Page 18] more fitted to the complexion of our people, then the English accent is; I cannot but remember them, that the Scots are thought the Nation under Heaven, who do with most ease learn to pronounce best, the French, Spanish, and other Forraign Languages, and all Nations acknowledge that they speak the Latin with the most intelligible accent, for which no other reason can be given, but that our accent is natural, and has nothing, at least little in it that is peculiar. I say not this to as­perse the English, they are a Nation I honour, but to reprove the petulancy, and mallice of some amongst them who think they do their Country good service, when they reproach ours.

—Nec sua dona quisque recuset.

I know that Eloquence is thought to have declin'd from Cicero's time, and it has so indeed, if with pedants, we make Cicero the Standart, for nothing can be straighter then its square; but I conceive that the world do's like particular men, grow wiser and learneder, as it grows old; but of all things Eloquence should improve most, because of all things it rypens most by practice; experience discovers daily more, and more of the humour of such whom we are to convince; and the better we know them, we can convince them the easier. By experience also we learn to know, what forms, and sounds please most, and every Pleader and Orator adds some new in­ventions to that of the last Age, and if one being added to twenty make twenty a greater number, then the Eloquence of this Age, being added to that of the former, must make this Age more eloquent then the last. But I know such as envy the Orators of the present Age, do still endeavour to mortifie them, by admiring such as are dead, who in their time met with the same measure; death also removes men from being our rivals, and so from being envy'd by us; yet we should remember, that even Cicero, and Demosthenes did complain of the same in their Age, though they far exceeded their predecessours.

Some may think that the Eloquence of Rome, and others behov'd to be higher then ours, because the multitude were in [Page 19] these Common-wealths absolutely govern'd by it, and the greatness of their reward for Eloquence, exceeding ours, their Eloquence behov'd to do so too. But I am formally contrary, for since our Judges are wiser, and more learn'd then the com­mons, there must goe more art to convictions now, then was requisite then, and though we have not Kings, nor Common-wealths to defend, as those ostimes had, who pleaded in the Roman Senat; yet we may show as much Eloquence upon lesser occasions, as one may cut finer figures upon Steel, then upon Gold; it is the intricacy of the case, and not the great­ness of the pryze, which makes the value of the pleading, and generous Spirits are more animated by difficulty, then gain. We have also moe Laws, Parallels, and Citations to beautify our discourse, then they had, and want none of their topicks; so that though our spirits did not equal theirs, yet in our pleadings we could not but exceed them. Nor do I value much the opinion of those, who think the Spirits of such as liv'd in Common-wealths were greater, because freer then ours, who live under Monarchies, and being sub [...]ects to none, they had greater confidence then we can have. This is but a fancy, in­vented by such as live under that form of Government: but I have not seen any Switzer, or Hollander, so Eloquent as the English, or French; and it enlivens me more to see Kings, and Courts, then to see these busie, and mechanick Nations: nor can I think any spirit can excell much in any one thing, where equality is design'd, and where all such as offer to rise above the vulgar, are carefully deprest, and sunk down to a level, as they are under Common-Wealths.

For my own part, I pretend to no bayes; but shall think my self happy, in wanting, as the fame, so the envy which attends Eloquence: and I think my own imperfections suffi­ciently repay'd by fate, in that it has reserv'd me for an Age, wherein I heard, and dayly hear, my Collegues plead so charm­ingly, that my pleasure do's equal their honour.

A Pleading translated out of French, to inform such as understand not that Language of the way of Pleading there.
An Estate in Land being dispon'd to a Woman, and another being substitute, in case she should die without children of her own body; She being condemn'd for incest, and burnt only in Effigie, the question is, Whether by that civil death, the condition be purified, as well as if she were naturally dead, and if the person substitute hath by that civil death, right to the Estate, without waiting for her natural death.
In favours of the person thus substitute, it was Pleaded.

ALbeit matters of Fact do depend intirely upon Nature, and cannot submit themselves to the authority of po­litick Laws, Eaquae sunt facti, nulla constitutione in­fecta fieri possunt; yet Law considers them only in so far as they are necessar and usefull for humane Society, and upon that ac­count forces this Maxim to suffer many exceptions. Thus bo­nae fidei possessor, is per actionem publicianam, made to have right by an imaginary and fictitious possession, to that which he never really possessed. Jus postliminii, makes us believe him who [Page 21] is a prisoner of War, never to have been taken prisoner. And Lex Cornelia doth presume, that these who did test whilst they were captives, did dye in the City to which they belonged, though they dyed really abroad in their captivity. All which instances prove, that the Law doth not subject it self blindly to Nature, but that it can ply matters of Fact to its own designs, and can by an innocent cheat, adjust them to publick utility and advantage.

This foundation being thus establish'd, let us examine this condition (if she dye without children) and let us try if it be so bound up to a matter of Fact, as that it cannot submit it self to the just and politick fictions of the Law.

It is certain, that albeit all Conditions be ordinarily meer mat­ters of Fact, yet this Condition which depends entirely upon the intention of the Testator, must owe its form to his will; and seing he did fix his first desires and designs upon this Wo­man and her Heirs, and did call the person substitute for whom I plead, but in the third place, not to suspend and differr his libe­rality, but to obliege my Client to wait, because she and her Heirs did preceed them in the order of his inclinations: there­fore, when Death or Fortune do state her and her Heirs in such a condition, that neither of them can expect the succession, there is no doubt but his will doth immediatly transport the effects of his liberality to the person substitute, since the persons who should preceed them, are by the Law removed out of the way. Nor was it the intention of the Testator to enrich the Fisk any more, then if he had adjected a Condition relating nothing to the purpose, Veluti, si Navis ex Asia venerit. From this likewayes it follows, that as succession is one of the wayes whereby we acquire in Law civil Rights which depend upon the Law, and which the Law doth not allow to any but to its own Citizens, Qui habent Testamenti factionem passivam; So this condition, Si sine Liberis decesserit, is not so entirely and absolutely a matter of Fact, but that Law and Fact are therein [Page 22] mixed together; and therefore, albeit the death of the first Heir without Children, is regularly understood according to the proper and natural signification of natural Death, yet Law­yers have extended this to civil Death, and have purifi'd the condition by deportation and other kinds of civil Death. As is clear, l. ex facto, 17. § ex facto, ff: ad senatusc. trebel. Ex facto tractatum memini, rogaverat quaedam mulier filium suum, ut si sine liberis decessisset restitueret haereditatem fratri suo, is postea depor­tatus, in insulam liberos susceperat; quaerebatur igitur, an fidei commissi conditio deficisset, nos igitur hoc dicemus, conceptos qui­dem ante deportationem, licet postea edantur efficere, ut conditio de­ficiat: post deportationem vero susceptos, quasi ab alio, non prodesse, maxime cum etiam bona cum sua quodammodo causa fisco sint vindicanda.

This woman is condemn'd to be burn'd and strangl'd, she had no Children, and can expect no divorce; her flight has not only banish'd her out of the Kingdom, but that sentence that has reveng'd her crime on her memory, and picture, has rendered her servam penae, the unfortunat prey of an unfamous Gibbet; How can she then but be repute dead, seeing she is expung'd out of the number of Subjects? and how can that Law which has execute and kill'd her, belye so far its own Authority as to believe her alive, after it has taken so much pains to make us believe she is dead? and after her civil death, how can it conserve for her a faculty of bearing Children, which may fulfill a civil condition? I confess that deportation is not still compar'd to natural death, and that the liberty which a banish'd man carry's with him to a forraign Countrey, do's preserve for him all the advantages of the Law of Nations, Ita ut ea quae juris civilis sunt, non habeat, quae vero juris gentium sunt habeat, l. 17. ff. de penis. But on the contrary, since the being a slave devests man of his humanity, and ranks him amongst beasts, l. 2. §. 2. ff. ad l. aquil. the Law can no more consider him, but as a piece of moveables, living and [Page 23] animated, as a reasonable tool belonging to his Master; So that having no head, nor will, but his Masters, therefore if the Law allow him to fulfill any condition, that is upon his Masters consideration, and not his own. A person condemn'd is the slave of his punishment, Servus penae, magis enim penae quam fisci servus est, l. 12. ff. de jure fisci: and therefore, the Law re­putes him dead, since that Gibbet to which it tyes him can com­municat nothing to him, but a cruel death, and consequently he can fulfill no condition, l. 17. §. Si quis rogatus ad senatusc­trebel. Si quis rogatus fuerit filiis suis, vel cui ex his voluerit restituere haereditatem Papinianus, l. 8. responsorum etiam de­portato ei tribuit eligendi facultatem; cui liber factus fidei com­missum restitui velit, sed si servus penae fuerit constitutus, nullo ante concepto filio, jam parere conditioni non poterit decessisseque sine Liberis videtur; sed cum decedit electionem illam quam Pa­pinianus deportato dedit, huic dari non opportet.

Law imitats Nature, and uses the same authority over a man, as he is sociable, that Nature exercises over him, as he is natu­ral: And hence it is, that the Law governs and [...]egulats Socie­ties for its own advantage, and as it can beget Children, and people Families by Adoptions; So by the same power it can cut off unnecessary members from Families by exhereditations, and can kill them by condemnatory sentences, Servus penae in omni jure, verè ac semper similis est mortuo: Cujac. obser. l. 3. cap. 10. Law then may justly bury a Criminal in the unfamous sepulchre of a cruel servitude, which takes from him his civil life with his liberty, and can tye him to a long death and exces­sive torment, which may draw out his torture to a very long continuance, and make him, as Petronius speaks, pass but for the pitiful vision, and horrid shadow of his own person.

We must then confess, that that Sentence which confiscats his Body and Goods, doth at the same time confiscat his Person and Liberty. It is the Sentence which kills him, and his na­tural death following thereafter doth but execute that Sentence; [Page 24] and as we say, that a Robber has kill'd a Passenger when he gave him the mortal wounds, though he did not then dye, Tunc oc­cidisti cum vulnerabas, l. si ita ff. ad l. aquil. So by the same reason, the Judge doth kill a Criminal the very moment that he pronounces the Sentence, and he truly dyes by the Sentence, and not by the Execution, l. 29. ff. de pen. Qui ultimo suppli­cio damnantur statim & civitatem, & libertatem perdunt, itaque prae-occupat hic casus mortem, & nonnunquam longum tempus oc­cupat, quod accidit in personis eorum, qui ad bestias damnantur, saepe etiam adeo servari solent post damnationem, ut ex his in alios quaestio habeatur. And as the authority of the Law may beget a Citizen before his birth, and receive a Posthume into the Common-wealth before he come out of the womb, Post humus pro nato habetur: So its Empire may take away the life a long time before a man die. It may preveen his death, and chase him out of the world before death overtake him, which is like­wayes confirmed per l. si quis 6. §. Sed & si quis ff. de injust. sed & si quis fuerit capite damnatus, vel ad bestias, vel ad gla­dium; vel alia pena quae vitam adimit, testamentum ejus irritum fiet, non-tunc cum consumptus est, sed cum sententiam passus est, nam penae servus efficitur. Let us now see if this way of reason­ing drawn from the Roman customs, can be brought home to our French Practique.

Lawyers who designed to found the principles of their true Philosophy, upon maxims, real, solid, and constant, were too clear-sighted to force their Lawes to discharge their revenge upon an Image, and an Apparition, to take the shadow for the Body, and in supposing the name of a Criminal for his person, thereby to challenge their Judges of want of power and precipitancy; and therefore they did not allow, that a person who is absent should be condemn'd, and that the Law should in vain spend its thunder upon those whom it could not reach: l. 1. ff. de requirend: reis. Since then the Law of the Ro­mans, could not condemn capitally a Criminal who was contuma­cious, [Page 25] it was easie to them to believe that a prisoner who was present and fetter'd, did instantly receive that death to which he was condemn'd. But since our Statutes ordain a painted and imaginary execution, either our Statutes and Customs must confess their weakness, and quite these as a meer mumries, or els they must necessarily obliege us to believe these appearances to be realities, and essay to verifie these civil lyes, in forcing us to believe that these painted executions are real; that the ori­ginals of those infamous pictures are no more alive, and that res judicata pro veritate habetur.

If the power of a Roman Pretor was sufficient to beget a child in spight of truth, and nature it self, Plane si denuntiante muliere, negaverit ex se esse pregnantem, tametsi custodes non miserit, non evitabit quominus quaeratur, an ex eo mulier pregnans sit, quae causa si fuerit acta apud Judicem, & pronun­tiaverit cum de hoc agetur, quod ex eo pregnans fuerit nec ne in ea causa esse ut agnoscere debeat, sive filius non fuit sive fuit, esse suum, l. 1. §: ult. ff. de agnosc. liber. or may force a Mother to disown her Child, which is really hers; Sive contra pronuntiatum fuerit, non fore suum, quamvis suus fuerit, placet enim ejus rei Judicem jus facere, l. seq. ff. eod. By much more reason, may a general Law and Custom universally re­ceiv'd, force subjects so far to obey their Judges, as to believe that a woman strangled and burnt has lost her life upon the scaffold, where she has been so publickly and tragically executed.

It is then more just to presume, that this Woman who is condemn'd is dead without Children, and that her execution has purify'd the condition, then that the pursuer should at­tend her death, should search out her wandering person, which lurks under so much shame, and pursue her in her flight and banishment through Countries, which are either unknown, or in enmity with ours; and therefore I conclude, that it is most just to put the pursuer in possession of the Estate.

I have essayed thus to answer the former Plead­ing, because there is no Answer to it extant in the French, and because such Cases may with us frequently occurr.

THe greatest glory of Art is, that it can imitate Nature; and every thing which forces Nature, is hated by men, as folly and affectation; but amongst all those Arts which follow Nature, Law is the chief, for it being the chief product of Reason, it endeavours most to resemble Nature, Reason and Nature being in man the same thing vary'd under diverse ex­pressions, and Reason being mans Nature. And thence it is, that the Law plyes all its constitutions to the several degrees of Nature, and observes it exactly before it begin to form a Statute relating to it, Propter naturam statuitur aliter, quam sta­tueretur alias, gl. ad. l. Julianus, ff. si quis omissa causa; though it appoints that consent should obleidge, yet it ex­cepts Minors, because of the frailty of their Nature; though it appoints murder to infer death, yet it pardons such as are Idiots, or furious; it doth in dubious cases prefer that interpre­tation which is most suitable to the nature of the thing con­traverted, it presumes illud inesse, quod ex natura rei inesse debet: and it has very well ordain'd, that ea quae dari impossibilia sunt, vel quae in rerum natura non sunt, pro non adjectis habentur, l. 135. ff. de reg. jur. Since then there is nothing so unnatural [Page 27] as to force us to believe, that a person who is really alive, is truly dead, and that the Children which a woman may bring forth shall not be her Children; I see not with what appearance of successe the Substitutes can in this case aspire to the succession now craved. Nature has a fixt beeing, and men know what it determines by consulting their own breasts, and think themselves happy under the protection of what is sure, and determin'd; but if it were allow'd that Law might vary, and that Lawyers might invent such fictions as these, and by them impose upon others, who not being of their profession could not follow all their subtilties, and windings; then Law should become a burden, and be esteem'd an illusion. And I imagine I hear those amongst whom this woman lives, laugh at this discourse, which would force them to believe that she is dead; and I am sure that any country-clown may refute it, by presenting the woman, as one refuted a wise Phi­losopher, who maintain'd, That there was no motion, with­out any other Argument, then by walking up and down.

The question then being, whether the condition, si sine liberis decesserit, is purified by a civil death, and if immediatly after she is burnt in effigie, she can be said, sine liberis de­cessisse, so that the person substitute may immediatly succeed, and exclude any Children she shall thereafter bear, or if the Sub­stitute must attend her natural death.

That the Substitute cannot succeed immediatly after her be­ing burnt, but that any future children would seclude him, so that a natural only, and not a civil death, purifies the condi­tion, is contended by these reasons; First, the question being, Whether this condition, si sine liberis decesserit, respects natu­ral, or civil death; we must interpret the word death, so as that we follow the more genuine and natural signification; and I am sure, the ordinary and genuine interpretation of death, is a natural and not a civil death. 2. If we look to the mean­ing of the Disponer, which is the next rule to be [...] in [Page 28] the interpretation of dubious and equivocal words, we will find, that it is hardly imaginable, that the Disponer dream'd of a civil death; and it is most certain, that any man, especially who was not a Lawyer, would never have figur'd a civil death; nor is it deny'd, for fictio is mens Legis, non disponentis. But how unsuitable were it to natural equity and the principles of Law, that the will of the Disponer should not regulat what is dispon'd? or why should the Law dispose upon what it did not bestow? 3. Words are to be explain'd in a Disponers Will, as the Disponer would probably have explain'd them himself, if the meaning had been contraverted at the time of making the Disposition; But so it is, that if it had been pro­posed to the Disponer, whether the Children of the woman institute should be cut off, in case their Mother should commit a crime? It is probable that he would not have punished poor Infants, for a guilt to which they were not accessory; and the Law was never more generous, then when it said, Non com­petere beneficium inofficiosi testamenti post-humis, cum ex­haeredationis causam comittere nequeant, nec debent alieno odio praegravari, l. 33. §. 1. C. de inoff. test. Nor is it imaginable, that the Testator would have taken from them what he de­signed, because they sell, without their own guilt, in a con­dition, which made that which was but liberality to become charity: and since he designed this for their Mother and them, to supply their wants, it is not imaginable he would have taken it from them, when their wants were greatest. The Children would likewise still continue to be nearer to the Disponer, then the Substitute, Nam jur a sanguinis nullo jure civili adimi possunt; and since the blood-relation gave at first the rise to that nomination, it is probable, that the effect would not be taken away whilst the cause continued. 4. If she can have Chil­dren after her being burnt in effigie, she cannot be said decessisse sine Liberis, upon her being burnt in effigie; but I subsume that she may have Children, and such too as the Law would [Page 29] acknowledge to be Children: for by the 22. Nov. cap. 8. Marriage is declar'd still to subsist, notwithstanding of any in­terveening criminal sentence, for though by the old Law, con­demn'd persons pro nullis habebantur, and so the Marriage was dissolved, yet by that excellent Constitution this was abrogat, Si enim ex decreto judiciali, in metallum aliquis, aut vir, aut mulier, dari jussus esset, servitus quidem erat & ab antiquis Legislatoribus sancita & ex supplicio illata, separabatur vero ma­trimonium, supplicio possidente damnatum, sibique servientem. Nos autem hoc remittimus, & nullum ab initio bene natorum ex sup­plicio permittimus fieri servum, neque enim mutamus nos formam liberam in servilem statum, maneat igitur Matrimonium hoc nihil tali decreto laesum. Since then her husband continued to be so still, and that the Law would acknowledge the Children to be hers, would not the Law contradict it self, if it should say that she died without Children, and yet should acknowledge that these were her Children? 5. Post-humus pro jam nato habetur, ubi de ejus commodo agitur; and therefore, by the same reason of justice and equity, the Law should be so far from presuming, that there can be no Children born after the mother is condemned, that if she shall bear any, it should rather pre­sume them to be already born, to the end they may not be prejudged of the succession which would be otherwise due to them; and if posthumus habetur pro jam nato, ubi agitur de ejus commodo, much more should he be presumed natus, ubi agitur de damno vitando; for we are much more favourable in damno vitando, quam lucro captando. 6. By the Roman Law, auth bona damnatorum, C. de bon. prescript. the Goods of con­demn'd persons were not confiscat in prejudice of the ascendents, or descendents, to the third degree, except only in the case of lese-majestie. If then the crime be not able to seclude Chil­dren, it follows necessarily, that Children quo ad their succes­sion, are in the same case as if the crime had not been com­mitted, and if the Mother had committed no crime, here there [Page 30] had been no place either for the Substitute, or for this question. It is just that delict a s [...]s debent [...] authores; and that since punishment is only justified by the preceeding guilt, that the punishment should not exceed the guilt, and that the right designed for the Children by the first Disponer, should not be taken away from them by the Mothers fault: this were also to adde affliction to the afflicted, to make poor Infants loose with their Mother, their patrimony, and to impoverish them most, at an occasion, when to give them were charity.

I confesse that Law sometimes doth recede from Nature, and invents pretty fictions, as in the cases propos'd of jus post­liminij, adoptionis, and Legis Corneliae; but it doth so, very sparingly; nor are these fictions ever allow'd, except where they are introduc'd by an expresse Law; for the Law thought it not reasonable to allow every Judge or Lawyer a liberty to coin his own caprice into a fiction, lest so, unreasonable fictions might be introduc'd, and lest the people might be ignorant of what they were to follow. Since then the pursuer founds his strongest Argument upon this as a priviledged fiction, he must instruct that this fiction is founded upon expresse Law, and even in these fictions, Law neyer inverts Nature, but rather seconds it, and it makes not Nature bow to these, but these to Nature; and amongst many other instances, this is clear by adoptions, wherein the younger cannot adopt the elder, because it were against Nature saith the Law, that the younger should be father to the elder, Inst. de adopt. §. 4. Minorem natu majorem non posse adoptare placet, adoptio enim naturam imitatur, & pro monstro est, ut major sit filius quam pater. And I may by the same reason say, that it were monstruous to imagine, that she who may really labour in child-birth, and who really may give suck cannot bring forth a child, but is dead; and that the Law should not own as children, these whom the Church owns as such. And in these fictions which are allow'd, we will find upon exact inquiry, that Law has not designed to over­turn [Page 31] Nature, but only has made bold by these fictions to dispense with some of its own solemnities, as is clear by the Law Cornelia, wherein the Romans did by that legal fiction imagine, that he who died in prison amongst the enemies in a Forreign Countrey, died at Rome, and at freedom, meerly that they might by that fiction render valid the Testament of him who was a prisoner, for the honour of their Common-wealth; and whose Testament could not have subsisted without this fiction, seing none but a free citizen could amongst them make a Testa­ment. Since then there is no need of such a fiction as this, and since there is no expresse Law introducing it specifically in this case, there is no reason that it should be allowed to take away the benefit of the Disposition from the person Substitute, which it gave not. Nihil tam naturale (sayes the Law) quam eo genere quid (que) dissolvere quo colligatum est, l. 35. ff. de reg. jur. Since then the Children owe not their succession here to the civil Law, but to the will of the Disponer, the Law should not by its fictions, take away what was not at first the effect of its liberality.

In the cases where the Law allow's fictions, it allow's them only for to strengthen natural equity, and not to overturn it, and by the definition given of it, it is said to be indubitatae falsitatis pro veritate assumptio, in casu possibili, & ex justa causa proveniens, ad inducendum juris effectum equitati na­turali non repugnantem. Jason. ad l. si is ff. de usu-cap: Upon which definition no subsumption can be founded here, for not only is not this in casu possibili, because it is impossible, that a per­son can be both dead and alive at once, and that Children should be, and not be, Verum est, neque pacta, neque stipulationes, factum posse tollere, quod vero impossibile est, neque pacto, neque stipula­tione potest comprehendi, l. 32. ff. de reg. jur. But it is also re­pugnant to justice and equity, that the Estate destinat by the Disponer to his blood-relations should be taken from them, and given otherwise then he would have bestowed it himself; and though the Law doth sometimes in favours of Children, [Page 32] obliege us to believe, that the Child that is in the Mothers womb is born, there is some foundation for imposing that upon us, since there is a Child extant though not born; yet it never uses that liberty in punishing poor Infants, and to condemn them before it can know them, or that they have transgressed.

In answer to the second classe of Arguments, I do confesse, that it is true, that all Civil Rights should perish by a criminal Sentence, and that in sensu civili, pro nullo habebatur damnatus; but it is as true, that ea quae sunt juris naturalis were not there­by taken away, quod attinet ad jus civile, servi pro nullis haben­tur, non tamen et jure naturali, quia quod ad jus naturale attinet omnes homines aequales sunt, l. 32. ff. de reg. jur. But so it is, that to bear Children is in her no effect of the Civil Law, but of the Law of Nature, and the Children to be procreat by her, will be her Children by the Law of Nature; so that since she can bear Children, she can yet fulfill the condition of the insti­tution; nor can she be debarr'd from that by being serva penae, at least her Children cannot, seing they are not condemned by her Sentence: condemnatory Sentences take only from the person condemned what may belong to the fisk, for it substitutes the fisk in place of the person condemned, but it takes not from him what cannot belong to the fisk. Ea sola deportationis sententia aufert, quae ad fiscum perveniunt; But so it is, that it was never designed, that the fisk should succeed in place of the person to whom the Disposition was made, as is acknowledged by the Substitute who now craves preference; and if the fisk would be preferr'd to the womans Children, much more would he be preferr'd to their Substitutes, who succed only to them. And the reason of the decision, l. ex. facto. ff. ad. sc. trebel. is not founded in odium of the Children, but of the fisk, Maxime cum etiam bona, cum sua causa fisco sunt vindicanda. But the solid answer to that, and all these other Laws, is, that by the old Roman Law, damnatus erat servus penae, & servus penae pa­rere conditioni non p [...]terat, & pro nullo habebatur; and therefore, [Page 33] by that Law, parere conditioni non poterat, as is clear by the Law cited: but Justinian did abrogat that amongst many other unreasonable fictions, and by nov. 22. cap. 8. this servitus penae is clearly abrogated, and therefore since the foundation of the decision is taken away, the decision can now no longer take place, and by all the Laws in Christendom, those servitudes are now abrogated; and our blessed Saviour has by his coming to the world, set mankind at liberty in all respects, and we can be slaves to nothing now, but to our vices. Nor doth the Law look upon a person condemned, as a dead person, in all respects, which is the third great foundation of all that is pleaded against my Client; for it allowes her to propone her just defences, and it would punish him who kill'd her upon a privat revenge; it would acknowledge her Children to be lawfull, and untill she be really dead, her husband could not marry another: for though the Law, to deterr men from committing crimes, doth oftimes raise its terrors by civil fictions, yet it is the nature of these civil fictions, that they cannot be strech't de persona in personam; though then it will not allow such to be thought still alive who are struck with it's Thunder, yet this fiction reaches only to the offender, in so far as concerns her civil capacities, and the punishment of her guilt; and therefore seing the blood is not tainted by this Sentence, she not being here condemn'd for treason, which is the only crime that taints the blood, her Children, though born after the Sentence, would still succeed to her, and since they would be acknowledged to be her Children, she cannot be said decessisse sine Liberis: which is the condition upon which the Substitute craves to be pre­fer'd.

The Parliament of Burgundy found, that a natural death could only purifie this condition, Si sine liberis decesserit.

For Haining, against the Fishers upon Tweed.
FIRST PLEADING. How far a man may use his own, though to the prejudice of his neighbours.

HAining being prejudged by a Lake which overflowed his Ground, and which by its nearness to his House, did, as is ordinar for standing Waters, impair very much the health of his Family: He did therefore open the said Lake, whose Waters being received by Whitticker, did at last run with Whitticker into Tweed. The Fishers upon that River, pretend­ing that the Water which came from that Lake, did kill their Salmond, and occasion their leaving the River, do crave that Haining may be ordain'd to close up that passage. This being the state of the Case, it was alledged for Haining,

That since men had receded from that first community, which seem'd to be establish'd amongst them by Nature, the Law made it its great task, to secure every man in the free and absolute exercise of his Property, and did allow him to use his own as he thought fit, and whatever did lessen this power and liberty, is by the common Law term'd a servitude, or slavery: nor can a servitude be imposed upon a man without his own consent, and suitably to this principle, every man may raise his own house [Page 35] as high as he pleases, though he should thereby obscure the lights of his neighbours house: or if I should abstract from my neighbours Ponds, that Water which formerly run into them from my Lands, the Law doth not think him prejudged, nor me oblieged to prefer his conveniency to my own inclinations, as is clear by l. 26. ff. de damno infect. For as that Law very well observes, He is not prejudged who looses a benefit which flow'd from him who was no way tyed to bestow it, l. 26. ff. de dam. infect. Proculus ait, Cum quis jure quid in suo faceret quamvis promisisset damni infecti vicino, non tamen eum teneri ea stipulatione: veluti si juxta mea adificia habeas aedificia, eaque jure tuo altius tollas, aut si in vicino tuo agro cuniculo, vel fossa aquam meam avoces. Quamvis enim & hic aquam mihi abducas, & illic luminibus officias, tamen ex ea stipulatione actionem mihi non competere: scil. quia non debeat videri is damnum facere, qui eo veluti lucro quo adhuc utebatur, prohibetur: multumque interesse utrum damnum quis faciat, an lucro, quod adhuc faciebat, uti prohibeatur. And if I dig a Well in my own house, which may cut off those passages whereby Water was conveyed to my neighbours Well, one of the greatest Lawyers has upon this case, resolved, that my neighbour will not prevail against me; For, saith he, no man can be said to be wrong'd by what I do upon my own ground, for in that I use but my own right; l. 24. § 12. ff. cod. In domo mea puteum aperio quo aperto venae putei tui praecisae sunt, an tenear? Ait Trebatius, Me non teneri damni infecti, neque enim existimari operis mei vitio damnum tibi dari, in eare, in qua jure meo usus sum: where the gloss observes, that in suo quod quisque fecerit, in damnum vicini id non animo nocendi fa­cere presumitur. And if by a Wall or Fence upon my Land, the Water was kept from overflowing my neighbours Land, I may throw down my own Fence, though my neighbours Land be thereby overflowed, l. 17. ff. de aqua pluvia; And therefore, seing the ground doth belong to Haining, and that the Fishers of Tweed have no servitude upon him, he may use [Page 36] his own as he pleases, especially seing he doth not immediatly send his Water into Tweed, but into another Rivolet, which carryes it very far before it doth disgorge there. So that if the Fishers upon Tweed did prevail against Haining, they might likewise prevail against all, from whose ground any Moss-water runs into Tweed, though at fifty miles distance; and they may forbid all the Towns from which any water runs into Tweed, to throw in any excrements, or any water employed in Dying, lest it prejudge their Salmond-fishing; whereas, Alteri prodesse, ad liberalitatem, non ad justitiam pertinet.

It is (my Lords) referr'd to your consideration, that pub­lick Rivers have been very wisely by providence, spread up and down the world, to be easie, and natural Vehicles for con­veying away to the Sea, (that great receptacle of all things that are unnecessar) excrements, and other noxious things, which would otherwayes have very much prejudg'd mankind; and that they may the better perform this office, Providence has bestow'd upon Rivers, a purifying and cleansing quality, so that after a little time, and a very short course, all that is thrown in there, doth happily loose their noxius nature, which is washt off by the streams by which they are carryed.

Rivers are natures high-wayes by Water, and we may as well forbid to carry any thing which smells ill, upon our high-wayes by land, as we may forbid to throw in stinking Waters into our Rivers. The proper use of Rivers is, that they should be portable, and fit for navigation, or for transporting things from on place into another; and Salmond-fishing is but an acci­dental casuality, and therefore the only interdicts, or prohibi­tions propon'd by the Law, relating to publick Rivers are, Ne quid in flumine ripave ejus fiat, quo pejus navigetur, tit. 12. lib. 43. and, ut in flumine publico navigare liceat, tit. 14. ff. eod. lib. But in Rivers that are not navigable, the Law has for­bidden nothing, but that their course and natural current be not alter'd, Ne quid in flumine publico fiat, quo aliter fluat aqua, atque [Page 37] uti priore estate fluxit, tit. 13. ibidem. So that since the Law doth not forbid the throwing in any thing into publick Rivers, It doth allow it; for it is free for every man to do what the Law doth not prohibit, and if upon such capricius suggestions, as these, men were to be restrain'd from using their own, no man should ever adventure to drain his Land, to open Coal-sinks, or Lead-mines, or to seek out any Minerals whatsoever, whose waters are of all other the most pestilentious, because after he had bestowed a great deal of ex­pense, he might be forc'd to desist, for satisfying the jealousie, or imagination of melancholy, or avaritious neighbours. And if this pursute find a favourable hearing, malice and envy will make use of it, as a fair occasion whereby to disturb all success­full, and thriving undertakers. But your Lordships may see, that the world, both learn'd and unlearn'd, have hitherto be­liev'd, that such a pursute as this would not be sustain'd, in that though interest and malice did prompt men to such pursutes, yet not one such as this has ever been intented, for ought I could ever read, save once at Grenoble, where an Advocat did pur­sue a Smith to transport his Forge from the Chief-street, be­cause it did by its noise disturb not only him, but the people who frequented that street; from which pursute the Smith was absolv'd, as Expilly observes in his Pleading.

Yet, my Lords, the Fishers upon Tweed want not some ap­parent reasons which give colour to the pursute; and it is urg'd for them, that no man is so Master of his own, but that the Common-wealth has still an interest with him in it, and Law being invented to protect the interest of Societies, as well as to secure the property of privat persons, therefore though every privat man inclines to satisfie his own humour, and advantage, in the use of what is his own, yet it is the interest of the Common-wealth, that he do not abuse his own pro­perty; and therefore it is, that the Law doth interdict pro­digalls; nor will the Law suffer that a man use his own in [Page 38] emulationem alterius,. l. 3. ff. de. oper. pub. and a man is said to do any thing in emulationem alterius, when others looses more by what is done, then the Proprietar can gain: As in this case, though quilibet potest facere in suo, yet non potest immittere in alienum, which is their case; and all the Arguments brought for Haining do not meet, seing they only prove, that a man may use what is his own as he pleases, ubi nihil immittit in alienum; as is clear by the instances given, of throwing down his own Wall, or the digging up a Well in his own Land, which differs very much from our case, wherein Haining doth pour in his poysenous Water into the River of Tweed.

That men are restrain'd for the good of the Common-wealth in the use of their own property, is very clear from many instances in our Law, as men are discharg'd by Acts of Par­liament to burn Mures, to kill Smolts; the way and manner of fishing upon Lochleven is prescribed to the Heretors, by Act of Parliament, and men are forbidden to steep lint by publick Acts likewayes. Likeas, the common Law will not suffer men so to use Water running through their own Land, as that they may thereby prejudge Milns belonging to their neighbours, which use to go by that Water, and whatever may be alleadged in favours of any innovation in running Waters, yet Lakes being appointed by Nature, seem to have from Nature a fix'd beeing; nor should they be opened to the prejudice of others, contrary to their Nature.

These objections may, (my Lords) be thus satisfied. To the first, it is answer'd, that the only two restrictions put upon men in the free exercise of their own, are, ne in alterius emulationem fiat, vel materiam seditionis prebeat, as is clear by the foresaid, l. 3. ff. de oper. pub. neither of which can be subsumed in this case. And when the Law considers what is done in emulationem alterius, it acknowledges, illud non factum esse in emulationem alterius, quod factum est princi­paliter ut agenti profit, & non ut alteri noceat, l. fluminum [Page 39] 5. ffin. ff. de dam. infect. and the gloss formerly cited upon that Law determines, that Animus nocendi is not pre­sum'd, if any other cause can be assigned: and in this case, Haining can ascribe his opening this Lake, to the prejudice it did to his Land, and to his Health, whereas it cannot be al­leadg'd, that he ever exprest any malice against the fishers upon Tweed, many of whom are his own Relations. As to the in­stances given, wherein the Law doth restrict the free use of Property, the Principle is not deny'd, but it is misapply'd. For the Law only bounds the Proprietars power in some cases, wherein his loss may be otherwayes supplied; as in Mureburn, and killing of Smolts at such a season of the year, and in steep­ing Lint in running Waters, which may be as commodiously done in standing Pooles; but these Pursuers crave this Lake to be stopt at all times, nor is there an apparent Reason here as there, this Pursuit being sounded only upon a conjectural prejudice, and in these cases, the Prohibition is made ne­cessar by the generality, and frequency of Occurrences, and yet though so circumstantiated, there is still a publick Law ne­cessar. And when a publick Law discharges the free exercise of Property, it ordains him in whose favours the Prohibition is, to refound his Expences who is prohibited: Nor is the Common-wealth here prejudg'd so much by this, as it would be by the contrare, for thereby all Coal-heughs, Lead-mines, and the winning of other Minerals would be discharg'd; whereas it is uncertain if this water chaseth away the Salmond, which are at best but a casuality, and which will go but from Tweed to other Rivers in Scotland, for they cannot stay in the Sea. Salmond-fishing is but an accident to Rivers, but there being the common porters is their natural use. Thus (my Lords) you see that we contend for what is natural to Rivers, they for what is but casual; we are founded upon the nature and priviledge of Property, they upon meer conjectures.

The Lords enclin'd to sustain Hainings Defence; but before answer, they granted Commission for examining upon the place, what prejudice was done.

For the Viscount of Stormont, against the Creditors of the Earl of Annandail.
SECOND PLEADING. Whether a Clause prohibiting to sell, will prejudge Creditors.

THe deceast Viscount of Stormont, having by his Majesties favour, and his own industry, acquired the Lordship of Scoon, he did tailie the same to Mungo Vis­count of Stormont, and the Heirs-male of his body; which fail­ing, to John Earl of Annandail, and the Heirs-male of his body; which failing, to Andrew Lord Balvaird, and the Heirs-male of his body; and to prepetnat his own memory, as the reward of his industry, he did cause insert this Provision in the Charter and Seasine, viz. That it should not be lawfull to the said Mungo, to dispone, or wodset any of the saids Lands so tailied, or to do any deed whereby the saids Lands might be evicted or apprised from them, without the consent of all the persons contained in that Tailzie, or their Heirs; which if they con­traveened, that they should, ipso facto, loose all Right or Title to the saids Lands, and the Right should accress to the next Heir.

The late Earl of Annandail, having very profusely and un­necessarily, spent not only his own Estate, but likewayes con­tracted [Page 41] debts, for which the Lordship of Scoon is apprised, this Viscount of Stormont, as immediat Heir of tailzie, craves that it may be declared, that the Right to the said Lordship of Scoon is devolved upon him by the forsaid contravention, and that he should enjoy the said Estate, free from any debts con­tracted by the Earl of Annandail.

Though this pursuit appears clearly to be founded upon the express will of the first Disponer, who as he might not have disponed, so might have qualified his Disposition with any conditions he thought fit; and albeit such clauses as these tend effectually to preserve illustrious families, yet the Creditors of the late Earl of Annandail do alledge, that though this his contracting of debt may furnish action against the Earl of Annandails Heirs, for any prejudice they can sustain by his contraveening the foresaid Provision, and though by vertue of this Pactum de non alienando, all the persons in the tailzie were bound up from selling the saids Lands; yet no paction, nor provision could annull debts, which were bona fide lent by them, to a person who stood in the Fee. Which Defence they urge by many specious reasons; as first, That there is nothing so con­trary to the Nature of Domintum, and Property, as that he who is Proprietar should not have the free exercise of his Right and Property, which free exercise consists in the liberty to alienat, and to make use of what is his own, for defraying his just debt, and answering his necessar occasions; and they pre­tend, that it were most absurd and inconvenient, that a person should be raised to the title and dignity of a Noble-man, and should be confest by the Law, to have an absolute right to an Estate, and yet that though he were captive in the Turkish Gallies, he should not be able to raise money for redeeming himself from that bondage; and which seems yet more repug­nant to the inclination, and interest of the Disponer, that if a Fine were imposed with assurance, that if the Fine were not payed, the Estate should forfeit, yet the Proprietar behoved [Page 42] idly to stand, and see the Estate sink. And though an ad­vantagious occasion offered of buying his own Superiority, his multers, or any such advantage; yet the Heir of tailzie could not raise money for that use, nay nor for alimenting himself, if the Rents perish'd by war, or other accidents. This is to have, and not to have an Estate, a paralitick Property, and an useless Right. To allow, that such a Clause in a Charter, might annull all the debts contracted by him to whom it is grant­ed, were to destroy and ruine Commerce, which is the very soul of a Common-wealth, and which by how much it is in­cumbred by unexpected Clauses, is by so much impared and burdened. Commerce doth oftimes require speedier returns, and dispatch, then can allow a serious consideration, of all the securities and evidents of those, with whom we deal; neither are these alwayes ready to be produced, nor doth the Law in what relates to Commerce, consider all that a Lender may do for securing himself, but what is ordinarily done; and it is most certain, that the most exact men do not enquire into the secu­rities of those with whom they contract in lending money; and though something may be pleaded in favours of ordinary clauses, which either Law, Customes, or Decisions have allowed, yet it were extraordinarily prejudicial to Commerce, to make a man forfeit his sum, because he did not guard against pactum de non contrabendo debitum, a paction as unsuitable to the nature of Propriety, as unusal in this Kingdom: and though the Legisla­tors do in some places allow such pactions as these, as is clear in Lege Majoratus in Spain, yet they are made tollerable there, because being introduced by a publick Law, they are universally known, and he who contracts with persons so pro­hibited there, forfeits his sum, because he neglects a publick Law, and not because he contemns the privat prohibition of a Disponer. Nor are such pactions as these to be so severely observed, as necessar for preserving Noble Families, and so fit for our Kingdom, which subsists by these; for if the nature of [Page 43] Propriety were to be alter'd, in so high a measure, as it is by this paction, it could in justice only be altered by a publick Law, wherein the Estates of Parliament (who are with us only Judges of what is convenient for the Nation in general) might declare, that it were fit to turn such a paction as this into a Law: and since for so many Ages, the Parliament has not thought this fit, nor have privat families ever introduced any such pactions till now, we must either judge, that these are not fit for privat families, or that those understood not their own interest.

As to strict Law, whereupon this pursute is only founded, the Creditors do represent, that though Lawyers have allow'd pactum de non alienando, yet they have extended it no further, then to annull Dispositions made contrary thereto; but they never stretch'd it so far, as to annull all Debts contracted by the person prohibited to dispone, l. ea Lege, C. de condict. ob. caus. dat. 2. Though they allow'd these prohibitions, quando in­ductae erant à Lege, à Judice, aut à Testatore per ultimam volun­tatem; yet they did not allow so much favour to Prohibitions, which are only founded super pactis viventium, as is clear by Craig. l. primo diages. 15. Omnes terrae, (inquit ille) in Feudum dari possunt, nisi quae à Lege, Judice, aut Testatore in ultima voluntate dari prohibentur. 3. Lawyers do not allow, that such Prohibitions as these, though resolutively conceived, should absolutely annull all alienations made by the person pro­hibited, except the Prohibiter reserve some Dominium and Pro­perty to himself in the thing dispon'd, by vertue of which re­servation, he has power to quarrel all deeds done, and the person to whom he dispones is because of that reservation, not so absolutely in the Fee, or Property, as that his Disposition should be unquarrellable; as is clear by Bartol. and Baldus, both ad l. Sancimus. Cod. de reb. alien. non alienand. where they conclude, quod si is cui promissum est, de non alienando reservavit sibi jus aliquod in re, hypothecae, vel dominij, impe­ditur [Page 44] translatio, aliter non, & etiamsi pactum adhibitum sit in ipsa traditione, & cum pacto resolutivo, tamen non impedit dominij translationem, sed illo casu alienans tenetur tantum ad interesse. And therefore, seing the Disponer reserved no right to himself, but that the late Earl of Annandail was fully in the Fee, It were against the principles even of strict Law, that debts contracted by him should be annull'd, as contrary to the Prohibition. 4. When a person is prohibited to alienat, that Prohibition is still restricted to voluntar and unnecessar aliena­tions, the design of the Disponer being to curb such of his successors, as should be luxurious, but not to bind them up when frugal, in occasions that are necessary and advantagious; and the Law is content to own such pactions, in odium of such as have fed the luxury, or prey'd upon the simplicity of those with whom they contracted, without any design to vex Commerce, or to preclude those successours from being re­lieved in their honourable and necessar occasions. Prohibita alienatione, tantum voluntariae prohibitae censentur, non vero necessariae, necessitas enim Legem non patitur, as Reiters observes, tract. de alien. cap. 6. sec. 4. which may be further clear, per l. 5. ff. de pet. haered. & l. 69. §. 1. ff. de legat. 2. And suitably to this, though in our Law Ward-lands recognise if they be voluntarily dispon'd without the consent of the Superiour, yet he is allowed to sell the less half of his Lands without the Su­periours consent, which is allowed by the Law to relieve his necessities; and though he cannot voluntarily alienat the greater half, yet all the Few may be apprysed from him by his creditors, for satisfaction of his just debt. And therefore, seing the late Earl of Annandail was known to be a judicious person, and to have lived very soberly, and that these debts can be instructed to have been contracted for relieving him out of the necessities unto which he was thrown by the iniquity of the times, and his constant adhereing to his Majesty; It is by these Creditors pretended, that these debts cannot be annull'd, as contrary [Page 45] to that prohibition, which they neither did, nor were oblieged to know. And since our Law has thought, that Inhibitions and Interdictions should be published, and registrat for putting the subjects in mala fide, It can never allow, that such clauses as these which are neither published, nor registrat, should pro­duce the same effect.

To these Arguments, they add, that God Almighty has oftimes testified his displeasure against such Clauses, whereby, his Providence is insolently bounded by vain man, who en­deavours to build himself a Babel against Heaven; and by which Clauses likewise, man will endeavour to perpetuat his own memory here, and call his Land to all Ages by his own Name, against the express advice which the Scripture gives.

I do confess, (my Lords) that those specious pretences, especially when prest with so much zeal, and eloquence, may make impressions upon such as are not intimatly acquaint with the principles of Law; but I hope, where we have such Judges as your Lordships, there can be little hazard from such objections: but before I endeavour to satisfie these, I crave leave to lay out before your Lordships, those grounds whereupon my Client founds his pursute.

It is an uncontraverted, and first principle of Law, that quili­bet est Dominus, & arbiter rei suae, and therefore may dispose upon his own as he thinks fit; nor can any thing less then a Law bound the exercise of this Power; and every man being Judge of his own conveniency, Lawyers do very properly term the conditi­ons adjected by a disponer, leges contractus, and the Feudalists call the conditions under which a Few is dispon'd, leges feudi; feuda (saith Zasius) à pactis contra naturam suam sunt transmutata, pacto praegravante naturam feudi: and albeit our Law has defer'd very much to equity, and to the principles of the civil Law; yet privat transactions betwixt parties, are not to be limited by those: But pactions are to be observed amongst them in their full ex­tent, as is ordain'd with us by an Act of Sederunt, 1573. Law [Page 46] may be receded from by privat Pactions; and therefore, much more must privat Pactions bind where they are contrary to no express Law: and since pactum in refamiliari aequipollet juri publico, Reg. Maj. lib. 3. cap. 10. & lib. c. cap. 31. It necessarily followes, that as a Law or Decision might have establish'd their pactions, de non alienando, & non contrahendo debitum, which is acknowledged by the Creditors themselves, that a condi­tion insert in a Charter may do the same as effectually: and if the pretence of publick Equity and Commerce, might alter the destination of a Disponer, or mutual pactions of privat Persons, what uncertainty would this occasion in Humane Af­faires? or who could be secure, that the Transaction he made, should hold? For there are few men who do not differ in their conceptions about Publick Commerce; this were to unhinge all privat Pactions, which persons had at first suited to their own necessities, and inclinations, and to make Judges who should be ty'd to a fixed rule, unrestrain'd arbiters, over the affairs and fortunes of the people: for they might, almost in all cases, recede from privat transactions, upon pretext that they are con­trary to publick good, equity, or commerce. But if any conditi­ons adjected by Disponers are to be observed, surely those which are adjected in a free gift and donation are most to be observed; and it is certainly contrary to reason, that he who needs not dispone his own Land except he please, may not dispone it as he pleaseth.

As the Law hath been very tender of the interests of all Pro­prietars, so of all others, it hath been most tender of those rights, whereby men have declared how their will should be obey'd, and their memory perpetuated after their death. Law design­ing thereby at once to encourage men to be frugal, because they may know that what they have gain'd by their industry, shall be disposed of according to their will; and to comfort men against death, because they may know that their will shall be as exactly execute, as if they themselves were still alive, Uti quisque de re [Page 47] sua legassit, it a jus esto. The Law in all Contracts, considers most, what was the design of the contracters, and when any thing is dis­pon'd for a particular cause, when that cause fails, the disposition falls as causa data, causa non sequuta, & si ea lege donavi, defectus causae impulsivae resolutionem contractus inducit, quia ea lege do­navi cum alias non essem donaturus, l. cum te. c. de pact. inter empt.

That such pactions as these are very lawful, and ordinary, is clear both from the civil, and feudal Law. For by the civil Law, though there were tailzies, yet the Romans had their fidei­commissa, which did very much resemble them, and by which the Person cujus fidei res erat commissa, could neither dispone nor impignorat; and if he did dispone or impignorat, that person in whose favour the fidei commissum was granted, might not on­ly pursue the disponer for damnage and interest, but might like­wise annull what was done contrary to the trust, as is clear, l. fin. cod. de reb. alien. non alienand. Sancimus, sive lex alienationem in­hibuerit, sive testator, hoc fecerit, sive pactio contrahentium hoc ad­miserit, non solum dominii alienationem, vel mancipiorum manu­missionem esse prohibendam, sed etiam usus fructus dationem, vel hypothecam, vel pignoris nexum petitus prohiberi; similique modo, & servitutes minime imponi, nec emphytenseos contractum, nisi in his tantummodo casibus, in quibus constitutionum auctorit as vel testatoris voluntas, vel pactionum tenor qui alienationem inter­dixit, aliquid tale fieri permiserit.

These Clauses, De non alienando, & non contrahendo de­bitum, are most allowable by the Feudal Law, where such Tailzies are called Feuda Gentilitia, & Feuda ex pacti Provi­dentia; yea, and by the Feudal Law, it was not in the power of him to whom it was first disponed, to alienat or affect the Few, either in prejudice of the Superiour, or of him who was next to succeed: and what is more ordinar with us, then such obli­gations in Contracts of Marriage? Sir Thomas Hope is of opi­nion, that a Right granted to a man and his Heirs, secluding As­signayes, [Page 48] could not be comprised by a Creditor; and sure that exclusion is not so valid, as a Clause irritant and resolutive, which is actus maxime explicitus & geminatus.

From these Principles, there do arise very natural answers to the alledgeances proponed for the Defenders; for whereas it is contended, that such restraints as these are inconsistent with Pro­perty, It is answered, that there is nothing more ordinar then to qualifie Propriety, as appears clearly by the nature fidei-com­missi, pacti gentilitii, and very many other instances; and even in our Law, Ward-lands cannot be disponed upon without the consent of the Superiour; and it is more contrary to the nature of Property and Dominium, that a man cannot dispone upon what is absolutely his own, under what restrictions and qualifications he pleases, then that he who hath only a qualified Dominium, should be in a capacity to dispone absolutely, upon what was not absolutely his own. That Maxim whereupon we found, that quilibet est moderator & arbiter rei suae, has no exception exprest in it; whereas the definition of Dominium insisted upon by them, which is, that it is Jus de re sua libere dis­ponendi, has an exception adjected to it, which is, nisi quis Lege prohibeatur; under which word Lex, the Doctors alwayes com­prehend pactum, and to prevent all mistake, some do expresly say, nisi quis Lege vel pacto prohibeatur: So that in vain do they found upon the nature of Dominium, since the very defi­nition of it doth contradict what is alledged.

To the second difficulty, bearing that these Clauses are de­structive of Commerce; It is answered, that the liberty of dis­poning upon our own, as we think fit, doth more nearly con­cern us, then the liberty of Commerce; especially in this Kingdom, which stands more by ancient Families, then by Mer­chants; and therefore seing these Clauses tend necessarily to per­petuat Families, and the other doth only tend to the better be­ing of Trade, we ought to prefer the pursute to the defence. And to what purpose shall we gain an Estate by Commerce, [Page 49] when we cannot secure it by such clauses? Nor are these clauses destructive of Commerce, as is alledged, more then In­hibitions or Interdictions, and it is easier to read a Charter, then to try the Registers; and England and Spain, which are more interested in Commerce then we, have by allowing such Clauses, evidently declared, that they think them not absolutely incon­sistent with Commerce. But the truth is, real Rights are not the foundation of Commerce; for Commerce is maintain'd upon the stock of personal Trust, and the main thing which Traffiquers relye upon, is the personal Trust which is amongst them, and not the consideration of any real Rights.

I do not conceive my self oblieged to take much notice of the Creditors being in bona fide to contract with the Earl of Annandail; for if Annandail had no power to burden that Estate, their bona fides could not give it him; nor could a Cre­ditor apprise from him that to which he had no right, no more then I can comprise one mans Estate, for another mans Debt: and if Annandail had only given a Back-bond, declaring that the Estate was only in his person by way of trust, the Creditors could not have apprised it for their Debt, though they might likewayes have alledged that they were in bona fide to lend. For, the Law considers only bona fides, where those who al­ledged the bona fides, did exact diligence, which these Credi­tors cannot alledge; for if these Creditors did not at all call for Annandails Rights to Scoon, they cannot be said to have laid out their money in contemplation of those Rights, but in con­templation of his other Estate, or upon the account of a perso­nal Trust; or if they did call for those Rights, they might have very clearly seen his Prohibition, and consequenly would have been secured against lending upon the faith of this Estate.

Whereas it is urged, that such Prohibitions as these, are only allowed, when they are introduc'd by Testament, by a Law, or by a Judge; but not when they are introduced by [Page 50] Contracts or Dispositions inter vivos, It is answer'd, that if it be allowable the one way, it should be the other; for the design is rather more deliberat in a Disposition, then in a Latter-will: for the one uses to be an act of health, and the other of sickness, and the one is as contrary to Commerce as the other is: and if any weight be laid upon the favour allow'd by the Law to ultima voluntas, upon the accout of consoling the Testator in obeying what he designs, this favour is equally communicable to both, for in both there is a Designation made of the way and manner of succession, in which a dying man is as much concerned, when he makes a Designation by a Disposition, as when he makes it by a Testament; and therefore, Les substitutions contractuelles ont les mesmes. Effects en France, que les Testamentaires, dans la prohibition d'aliener, as Lowet observes, tit. 5. num. 9. and for which he cites many decisions; and where he observes very judiciously, that the reason why the Roman Law did not allow these Sub­stitutions, and Prohibitions in Contracts, as it did in Testa­ments, was, because Testaments was the only way amongst them of disponing upon Estates, and of making Substituti­ons, and fidei-commissa; to make which was not allow'd by Contracts, quia auferebant testandi liberam facultatem, which subtilty is not now allow'd in this Age: for on the contrary, Tailzies and Contracts of Marriage, are now the ordinary wayes of disponing Estates, and if men might alter such de­stinations of Contracts, such as do contract with them would be in a hard condition.

Nor is there more weight in that part of the alledgeance, which bears, that those Prohibitions do only annull deeds done in favours of him who has reserved some Right in his own person; for Tailzies with such Prohibitions, do imply a reservation in favours of those who are to succeed, and the Tailzie is in that case but a Right of Trust to the behoof of the Family; and the Provision in their favours is equi­pollent [Page 51] to a reservation. The design of both is the same, and therefore they should both operat the same effect.

Discourage not, (my Lords) such as love to be frugal, because they hope their Estate may remain with their Posterity; encourage not such as resolve to shake loose, by their Prodiga­lity, what was establish'd by their wise Predecessours: By favouring the Creditors Defences, you will but gratifie the prodigality of Heirs, or the laziness of Creditors; whereas, by sustaining my Clients pursute, you will secure us as to our own pactions, and as to your decisions; you will per­petuat Noble Families, and bound the Luxury of such as are to succeed.

The Lords sustain'd the Pursute, and repell'd the Defences propon'd for the Oreditors.

For the Lady Carnagie and her Lord, against the Lord Cranburn.
THIRD PLEADING. Whether Tax'd-wards be lyable to Recognition.

My Lord Chancellor,

THe late Earl of Dirletoun having no Children, besides two Daughters, and having an Estate consisting of Lands in Scotland and England, did very judiciously at first resolve to marry one of them in Scotland, and the other in England; and in pursuance of this design, he bestowed Eliza­beth the eldest, upon William Earl of Lanerick, Secretary of Scot­land, Brother to Duke Hamiltoun, but which was more, a per­son admir'd for his heroick Vertues, and whose Alliance was courted at any rate, by the most eminent Families of both King­doms. The younger of these Daughters, named Diana, was match'd thereafter to the Lord Cranburn; and as the Earl of Lanerick could not but have justly expected all, or at least the far greatest share of that Estate, So the Lord Cranburn could scarce have expected thereafter any thing above an ordinar Por­tion: Yet, such is the capriciousness of old men, that the Earl of Dirletoun did, in anno, 1649. by the impressions of some who were inveterat enemies to the Family of Hamiltoun, dis­pone the Lands of Innerweek, Fenton, &c. failing Heirs-male [Page 53] of his own body, to Iames Cecil his Grand-child, and the Heirs-male of his body.

His Majesty finding, that the said Estate was most illegally dispon'd to Iames Cecil, without His consent as Superiour, they holding Ward of Him, and that he had thereby defrauded the just expectations of so worthy a person as the Earl of Lanerick, and so the Lands recogniz'd by the said Disposition, did gift the saids Lands to the Lord Bargeny, for the behoof of the Earl of Lanerick; upon which Gift of Recognition, there is now a De­clarator pursued by the Lady Carnagie, eldest Daughter to the said Earl of Lanerick, who thereafter became Duke of Hamil­toun, wherein she craves, that it may be declar'd by you, that she has the only Right to these Lands.

There are very many Defences propon'd for the Lord Cran­burn, which I shall endeavour thus to satisfie.

The first is, Recognition has only place in feudo recto & pro­prio, whereas these Lands hold Tax'd-ward, in which manner of holding, all the casualities are taxed to a very inconsiderable sum, which sum is designed to be the only advantage that shall accress to the Superiour: and the reason why Ward lands re­cognize when they are sold without the Superiours consent, is, because the Superiour having so great interest in the Lands which hold by simple Ward, as to have the Ward and Mar­riage of the Vassal, the Law did therefore obliege him not to alienat that Land, without the Superiours consent; which rea­son ceaseth, where the Ward is tax'd, the Superiours interest be­coming very inconsiderable by the Tax: nor can it be imagin'd, but that the Superiour, having dispensed with the great casua­lities of Ward and Marriage, has consequently dispensed with the said restraint, Cui datur majus, datur minus, praesertim ubi minus inhaeret majori & est ejus accessorium.

For satisfying which difficulties, your Lordships will be pleas'd to consider, that our Law appoints all Ward-lands to recognize, if sold without the Superiours consent, and makes [Page 54] no distinction betwixt simple and tax'd-ward; the general is founded upon express Law, and there is no express warrand for excepting tax'd-ward. 2. Seing these Lands could not have been fold before they were tax'd, by what warrand can they be sold since they were tax'd? Seing though the casualities of Ward and Marriage were tax'd, and thereby these casualities expresly re­mitted, except in so far as they are tax'd; yet there is no power granted to sell, without the Superiours consent: Nor is that priviledge remitted by the Superiour, Et fendum alteratum in una qualitate, non intelligitur alteratum in aliis & actus agentium non operantur ultra concessa. 3. The power of selling with­out the consent of the Superiour, is different from the casuali­ties of Ward and Marriage, which are here only tax'd; for Few­holdings are oft-times burdened with this restraint, and this re­straint was of old taken off expresly by warrands under the Quarter-seal, without taxing the other casualities; So that this priviledge differs from these, and the one cannot be compre­hended under the other.

The second Defence is, that by the Feudal Law, Recogniti­on ob alienationem feudi est crimen, & delictum feudale, against which error, etiam probabilis ignorantia excusat; as is clear, lib. 2. tit. 31. The words are, Quod enim dicitur alinatione feudum aperiri domino, intelligendum est cum à scientibus alienatum est beneficium, which are the words of the said Law: whereupon, Socinus, reg. 153. though he do give it as a rule, that Emphyteuta rem emphyteuticam vendens a jure suo regu­lariter cadit, conform to the civil Law, l. ffinal. C. de jure em­phyteutico, he subjoyns these words, Fallit ubi emphyteuta vende­ret ignorans rem esse emphyteuticam; and accordingly, Craig, de recognitione, lib. 3. diages. 3. and in the case of disclamation, lib 3. diages. 5. layes down for an undoubted principle, that ignorantia crassa excusat feudalia delicta. And here, the subject of the question is not in jure, & in thesi, whether Ward-lands should recognosce; but in facto, & hypothesi, his [Page 55] Right being of the nature, and in the terms foresaid, he might dispone without hazard, as to which, an error in him, who was an illiterat man was very excusable, especially having con­sulted Peritiores, and having been assur'd by very eminent Lawyers, that there was no hazard in disponing those Lands, without the Superiours consent, they holding Tax'd-ward, which was sufficient to have defended him in feudo amittendo.

To which it is answered, that ignorance of the Law excuses no man; and the case having been at best dubious, the Vassal should not have hazarded upon what the Law might con­struct to be a disowning of his Superiour; and since every man is oblieged to know the nature of his own Few, the Law doth presume, that every man doth know it, Nam quod inesse debet, inesse presumitur; and therefore, Craig doth very well con­clude, pag. 344. tit. de recognitione, that ignorantiam, pretendens vix audiendus est, cum sit crassa ignorantia, feudi sui conditi­onem ignorare: and though he observes there, that excusabitur, qui feudum suum non militare credidit, cum militare est; yet, that cannot be extended to this case, wherein the Vassal certainly knew that his Few held Ward: and though the Law sometimes doth excuse a Vassal, who had reason to doubt the condition of his own Few, because of some mysterious Clause, or because he was a singular Successor, and had not recovered the Writes of the Few as to which he transgressed, or was neces­sitate to do the deed, for which he was challenged, by poverty, or such other occasions; yet, that in the general, ignorance did not excuse delicta feudalia, is very clear by the opinion of the learnedest Feudalists, Laur. Silv. de. feud. recog. quest. 60. praepos. in cap. 1. §. praeterea de prohib. feud. alienat. And in our Law, it was never found, that ignorance did defend against recogniti­on, the falling of an escheit, disclamation, &c. And if the Superiour were oblieg'd to prove the Vassals knowledge, it were impossible ever he could prevail in any pursute; know­ledge being a latent act of the mind, which can never be proven [Page 56] but by oath; and to refer knowledge to the oath of the Vassal, were not only to frustrate the Superiour, but to tempt the Vassal to commit perjury; and albeit the Feudal Law did allow the Vassal to purge his guilt, by deponing in some cases upon his design, yet that was only allow'd in cases where the external act was of its own nature indifferent, such as the speaking of contumelious words, that were to receive their genuine interpretation from the design of the speaker; and that did never take place in clear acts, such as this is, where­in the Vassal hath sold his Few without the consent of the Superiour.

The thrid Defence was, that where there is no contempt, there can be no recognition; But so it is, that as the presump­tion of contempt is taken off by the constant tenor of the Earl of Dirletouns respect for his Master, the King; So the Disposition is given to be holden of the King, and that im­plyes as much, as if it had been expresly provided, that the alienation should be null, if the Superiour should not consent and confirm the same; and such an express Provision should have certainly, in the opinion of all Feudalists, defended against recognitions.

To this it is answered, first, That the clause, si Dominus meus consenserit, doth not defend against recognition, though exprest, verbis geminatis, & pregnantibus; and unless it be resolutively conceived, bearing that it shall not be valid alias, nec alio modo, and although all these cautions be adhibit, yet many Feudalists are clear, that this will not defend against Re­cognition, where the person to whom the Few is disponed at­tains to possession, as Cranburn here did; for they think, that in that case it is but protestatio contraria facto, & plus valet, quod agitur quam quod simulate concipitur: and if this were sustain'd to defend against recognition, no Few should ever recognize, for the Vassal should still defraud his Superiour of any advantage, by inserting a clause si dominus consenserit; upon which con­siderations, [Page 57] your Lordships predecessours have, by a decision the 16. of February, 1631. found, that Lands may recognise notwithstanding of this condition. 2. The disponing of Lands to be holden of the Superiour, is not equivalent to the clause, si Dominus consenserit; for the disponing Lands to be holden of the Superiour, prov [...]nit non ex facto vassali, sed ex natura feudi, & ex stilo; all Fews being given in Scotland, to be holden either of the Superiour or the Disponer, à me, vel de me, as shall best please the receiver; So that the disponing the Lands to be holden of the Superiour, doth not shew any clear design the Vassal had to require the Superiours consent, and consequently cannot defend against Recognition.

To fortifie this point, it is urged by the Defender, that where there is no prejudice to the Superiour, there can be no recognition; and there is no prejudice to the Superiour in this case, seing the Superiours prejudice is either upon the account, that the Vassal redditur pauperior, or that the disponing without the Superiours consent obtiudes upon the Superiour a stranger ex al ena familia & inimica; whereas in this case, the Disponer was not pauperior, having re­served his own liferent, and in effect, the Bee it self, and power to burden the same, and contract debt, and alter the tailzie, and dispose of the Estate notwithstanding of the same; and the Lord Cranburn cannot be said to be a stranger, being descended of the Earl himself, and being his Grand-child.

To this it is answered, that in Law, all such persons as are not alioqui successuri, sunt extranei ex tenore investiturae, and by two express decisions related by P. Spotswood and Hope, it was found, that Dispositions made to the Brother or Grand-child did infer Recognition, though they were like­wayes ex familia, Nec licet (saith Craig, pag. 345.) Vassalo anum ex liberis suis eligere, sed vel naturae, vel juris ordo sequendus, vel domini electioni res est permittenda.

[Page 58] The fourth alledgeance was, that only perfecta translatio domini, can infer Recognition; whereas the Sasine here is null, because it is given to be holden of the Superiour, and Sasines of that nature are intrinsically null, quo ad omnes effectus, except the Superiour confirm the same.

To this it is answered, that si vassalus fecit omne quod in se erat, to alienat the Few without the consent of the Superiour, that alienation will infer Recognition, though the alienation was null otherwayes, as is clear by Craig, pag. 344. Quod si traditionem Vassalus fecerit, ea tamen sit invalida & nulla exempli causa si chartam dederit, de fundi alienatione tenendam de domino Superiore, quam Sasina sequatur. Et dominus Superior neque confirmaverit, neque ratam habuerit, videtur hanc aliena­tionem nihil periculi secum trahere, cum conditionalis videatur & sub hac conditione contracta, si dominus ratam habuerit, aut confirmaverit, quae conditio, cum non evenit & alienatio nulla sit ex defectu consensus Superioris, & paria sunt in jure omnino non fieri, & non jure fieri; sed profecto in hoc casu puto etiam feudum domino aperiri, nam quandocunque vassalus id omne fecit & exequutus est, quod in se erat, licet factum illud de jure non teneat, tamen quatenus in se est, domini mutationem se velle testificatus est fidemque fregit: in hoc etiam casu a feudo cadet, licet alienatio nulla sit. Suitable to which, Baldus has very well observed, that licet alienatio sit nulla, ob vitium litigiosi feudum tamen fit caducum, quia in prohibitis non requi­ritur juris effectus, quod enim prohibitum est effectum sortiri nequit; and if only effectual alienations could infer recognition, it could never be inferred; for all alienations, to which the Superiour doth not consent, are null, and by the Act of Par­liament, 1633. all Seasines of Ward-lands granted to be holden Few, are declar'd null, and yet are declar'd to be the ground of recognition. And whereas it is alledged, that Craig, pag. 344. relates the case betwixt Mackenzie and Bain, In which it was found, that Lands did not recognise, because [Page 59] not registrat within fourty dayes. It is answered, That there the Vassal non fecit omne quod in se erat, not having registrat the Sasine timeously, and so the tradition was compleat; nor did the person to whom it was disponed possesse in the case cited, the Land disponed, as Cranburn did in this: and by the opinion of Rosenthal, capite. 9. conclus. 4. Feudum (inquit ille) absque domini consensu aperitur etiamsi alienatio ex alia aliqua causa forte omissa solennitate legis aut statuti, aut simili, esset nulla modo possessio vera & actu tradita sit nam doctores in hac materia considerant prejudicium ipsius domini magis in tra­ditione reiquam in alienatione. Vide Curtium, Jun. de feudis, pag. 4. num. 85.

Whereas it is alledged, that the Sasine is null, as given upon a general Letter of Atturney out of the Chancellary, nor are general Mandats sufficient in prejudicialibus, and that this Sasine was given to a Minor, who was extreamly laes'd. To both these, the former answers are oppon'd, wherein I have endeavoured to prove, that the alienation may be null, and yet may infer recog­nition; our Law considers not Minority, as to casualities com­petent to the Superiour, as is clear in the cases of Non-entry and Rebellion: and since the Act of the Disponer, is that which on­ly infers recognition, it imports not what the condition of the Person was to whom it was granted.

It is also pretended, that the Sasine is null, as being actus le­gittimus qui non recipit aiem, nec conditionem, l. 77. ff. de reg­juris; for since executione actus statim perficitur, its inconsistent that actus should be perfectus, & exequutus, and yet should be suspended upon a condition, as this Sasine is, which bears, fail­ing Heirs-male of the Earl of Dirletouns body.

To this its answered, that this Sasine cannot be call'd actus legittimus, that being ordinarily a term appropriat to judicial Acts, whereas there is nothing more ordinar then that Sasines should be conditional, as we see in Sasines, given upon warrandise Lands, and in Sasines following upon Wodsets; nor is it denied [Page 60] that Sasines may bear resolutive conditions, and if so, why not other conditions, these being of all others most severe? Nor have any Lawyers written upon this subject, who have not divided Sasines in puram & conditionatam.

The fifth alledgeance was, that there can be no recognition where the Vassal had power to dispone, and the Earl of Dirletoun had by his Charter, power to dispone; for these Lands are dis­poned in his Charter haeredibus & assignatis, which implies potesta­tem alienandi, which the Defenders learn'd Advoc [...]s do found upon tit. 48. lib. 2. feud. Si quis enim ea lege alicui feudum de­derit ut ipse, & sui haeredes, & quibus dederint habeant qui sic acce­pit poterit vendere, vel alienare sine consensu Domini; for which likewayes they cite Craig, dicta. diag. 3. Clarus, Hottoman and other Feudalists.

To this it is answered, that this general clause haeredibus & assignatis, is only meer stile, and the word assignatis is used here improperly, as it is used in Bonds, in which a man binds him­self, his He [...]s and Assignayes, whereas it is impossible for a man to bind his Assignayes. Argumentum a stilo is not still pro­bative, especially in this Age, wherein stiles are become too laxe, and in our eldest stiles, there is a luxuriancy, which deserves rather to be corrected, then allowed; thus Inhibitions forbid us to alienat Moveables, and single Escheits give right to Re­versions, albeit our Law reprobats our stile in both these; and this clause was not designed to import a liberty to alienat, for els there could be no recognition in Scotland, seing all Charters bear that clause, and such as have that clause have oftimes been found to recognise, & generales clausulae non extenduntur ad illicitum: and that by the Feudal Law, the word Assignatis is not equivalent to quibus dederit, is clear; seing the Feudalists use no such term as assignati; and in our Law haeredibus legittimis, & assignatis, must not be interpreted as if it were equivalent to quibus dederit, but to that clause used by Doctors, quibus legittime dederit; and all Feudalists are po­sitive, [Page 61] that the clause quibus legittime dederit, implies necessarily that the Superiours consent is still necessar.

Likeas, Generalis clausula non extenditur ad prohibita ubi fieri potest congrua interpretatio; But so it is, that the word as­signati may be understood of Comprisers, or of such to whom the Vassal should dispone the lesser half of the Few: So that when a Few is granted haeredibus, & assignatis, it is lawfull for Creditors to comprise that Few, or for the Vassal to dispone any part thereof, not extending to the half; but that Clause can never import, that it should be lawfull for him to dispone the whole, without the Superiours consent, that being an interpre­tation which the parties themselves never designed; and pri­viledges which are inherent in the nature of a Few, (as this is) are never understood to be discharged, except where they are discharged expresly.

The Defender, my Lords, hath told you, that he propones all these Defences jointly, which may discover to you, how frail his own Advocats judge these Defences to be: Arguments which are weak, being join'd, may by their mutual assistance plead pitty, but they can never astruct the proponers Right, no more then many cyphers can make a number, nor many uncer­tainties a certainty: This is a shift which Eloquence, not Law, has invented, and may prevail with Arbiters, but should seldom convince Judges.

The Lords found, that these Lands, though holding only Taxt­ward, did recognize; and repell'd also all the other Defences.

For Alexander Carmichael, against the Town of Aberbrothock.
FOURTH PLEADING. How far the Borrower in commodato estimato, is lyable, if the thing be lost, vi majore.

WHen the Town of Dundee was so fortified, that its in­habitants had reason to expect security to the Ships which lay under their walls, either by way of defence, or capitulation; the Town of Arbroth did crave the lend of some Cannons from Alexander Carmichael: but because the said Alexander, as a Burgess in Dundee, might have expected from the foresaid Garrison, or from his being able to sail his armed Ship where he pleas'd, perfect security to his Guns, he there­fore refused to lend the same, till Patrick Wallace and other privat Burgesses of Arbroth should estimat the Guns, and oblidge themselves to re-deliver the saids Guns free from all skaith, harm, or danger, or els to pay the sum of 500. l. as the price agreed upon: and that in respect he foresaw, that the Guns were not only lyable to great danger, ex sua natura, but likewayes because Arbroth was a naked Town, wanting walls, men, and skill; and albeit the Town of Arbroth did owe to the saids Guns the resistance they made to Cromwels Ships [Page 63] in three several attaques, wherein if they had wanted Guns, there Town had been burnt, yet so unjust are the saids Patrick Wal­lace, and others, that when the foresaid liquid sum is charg'd for, they suspend upon this reason, viz. that this Con­tract is commodatum, & commodatarius non praestat casus for­tuitos: But so it is, they subsume, that these Guns were lost casu fortuito, in so far as the Defenders endeavour'd to carry them to Dundee; but being beat in by Cromwels Ships, they were forc'd to bury them in sands, out of which they were raised and taken by those enemies.

To which it was answered, that though in commodato simplici, commodatarius non praest [...]t casus fortuitos, yet in commodato estimato, it is otherwayes, which is most clear from l. 5. §. 3. ff. commodato, the words whereof are, Et si forte res aestimata data sit, omne periculum praestandum ab eo, qui aestimationem se praestaturum receperit; which holds not only in commodato, but in all other Contracts, where any thing is estimat, as is clear in the general, by l. 1. §. 1. ff. de estimatoria, Estimatio autem periculum facit ejus qui suscepit, aut igitur rem ipsam incorruptam debet reddere, aut estimationem de qua convenit: Many instances of which general may be given in several Con­tracts, but it shall satisfie me to name Dos estimata, wherein it is very clear, that the valuing of things delivered, did obliege the receiver to re-deliver either the thing valu'd or its price, though the thing valued did perish casu fortuito, as is clear, l. 10. ff. de jur. dot. Plerumque (inquit Ulpianus) interest viri res non esse estimatas, ideo ne periculum earum ad cum pertineat maxime si animalia in dotem acceperit, vel vestem qua mulier utitur, eveniet enim si estimata sint & mulier attrivit ut nihilomi­nus maritus earum estimationem praestet: which is also most clear, l. 10. §. 6. ff. de jur. dot. And if at any time the Law relax any thing of this alledged severity, in favours of him who receives the thing valued, It is upon the account that the thing valued was delivered for the use and advantage, not of him who re­ceived [Page 64] it, but of him by whom it was entrusted; as if in our case, my Clients had entreated the Citizens of Arbroth to re­ceive their Guns, and had valued them at the delivery; the Law in that case, would not have burdened the receivers with the loss, where they gave no occasion to the lend; but in the case where the thing valued was lent at the desire of the Citizens of Arbroth, and for their advantage, without any possible ad­vantage for the lenders, in that case, which is our present case, the Law doth in express words tye the receivers to re-deliver either the thing lent, or the estimation, l. 17. §. 1. ff. de estima­toria; Si Margarita tibi estimata dedero ut eadem mihi adferes, aut pretium eorum, deinde haec perierint ante venditionem, cujus periculum sit? Et ait Labeo quod & Pomponius scripsit, si quidem ego te venditorem rogavi meum esse periculum, si tu me tuum, si neuter nostrum sed duntaxat consensimus teneri te hactenus ut dolum & culpam mihi praestes. Nor can this be well doubted, if we consider the nature of estimation or valuing, and the design of these who enter into such contracts, by their estimating the thing lent.

All Lawyers and others are of the opinion, that commodatum becomes by estimation, anomolum & irregulare, and the esti­mation were to no purpose if it did not bind the receiver of the lend to more then what would follow, ex natura commodati sim­plicis; and therefore, seing commodatarius was here liable ex cul­pa levissima from the nature of the contract, because the Lend was given only for the advantage of the Lender: It must ne­cessarily be infer'd, that the Receiver of an Lend that is valued and esteemed must be furder liable, els there would be no diffe­rence betwixt a thing lent simply, and lent after it is valu'd, and consequently, the valuing before lending should operat no­thing; so that seing in an ordinar Lend, the Receiver would be liable in culpam levissimam, the Receiver must be liable in casus fortuitos, where the thing lent is estimat before lend [...]ng, there be­ing no case ultra culpam levissimam praeter casus fortuitos. 2. The [Page 65] lender did secure himself by a Bond and the foresaid Obligation, to restore the price, if the thing lent were not free of skaith, hurt or damnage. 3. If there was any thing ambiguous in this case, yet the clause behoved to be extended, ad casus fortuitus, and that must be thought to be the meaning of the parties from the follow­ing rules, whereby ambiguous Contracts are to be interpret, viz. First, a write is alwaies to be interpret against the Subscriber, who should impute to himself, that he did not clear what he intended, and it were unreasonable that his obscurity should be a snare to another person, scriptura semper est interpretanda contra proferen­tem. 2. That in reason should be constitute to be the meaning of the write, which if it had been treated of, had certainly been con­descended to by all parties: But so it is, that if at the time of the lending of the saids Guns, the Lender had refused to lend them upon any other terms, then that he should have been secur'd a­gainst all events; It is not to be imagined, that the Borrowers would have hazarded their Lives and Fortunes, and the honour both of their Country and Town, for the hazard of 500 pound; and it is as improbable, that the Lenders would have given the Guns, they being stated under all the Circumstan­ces above narrated. 3. It may appear both from the circumstance of time, and the nature of the thing lent, that they foresaw the risk these lent Guns were like to run; for none but Idiots would not have foreseen the same: and it were against reason to think, that a man would secure himself against an open and seen hazard, especially being to lend them to persons who behov'd to buy others, if they had not got the lend of those, and who would have bought these Guns, if the lender would have sold them, and if they had been sold, the buyers had run all risks.

To this it was replyed, that first commodatum estimatum was only so called, when the lender did estimate the thing lent, and did take the commodatarius only oblieged to restore not the thing lent simply, but either the thing or value, at the option of the receiver, as was clear, because the receiver might have op­pon'd [Page 66] compensation against the lender, when he was pursuing for the thing lent, or might make use of the thing lent as he pleased, which was not our case; because the receivers of the Guns could not have retained the same, or have rejected com­pensation against the Lender, though the lend had been damni­fied; but it was in the option of the Lender to have call'd either for the Guns, or the estimation, and this estimation and value was agreed upon, to the end that the value might be repeated, if the Guns were lost through negligence, or deterioration, but not if they were lost vi majore, or casu fortuito. 2. By the expresse words of the Bond, the value is only to be restored in case the Guns be damnified, but there is no provision made against their being lost, nor can that be presumed to be the meaning of the Parties, because ille presumitur sensus verborum qui est rei geren­dae aptior, and casus fortuitus is very contrary to the nature of commodatum. 3. This is not only casus fortuitus, but insolitus, to which no contract is ever extended, and this case of the Can­nons being taken out of the Sands, could never have been fore­seen, seing it is absolutely extrinsick, both to the use of Cannons, and to the ordinar hazards of Cannons; and it was unusual and ominous for a Scots man to provide against their being over-run by the Usurpers. 4. These Guns had been lost, if the lender had retained them, seing the Usurpers, after the taking in of Dundee, made prize of all their Ships and Guns.

To which it was duplied, that the former Law was oppon'd, bearing that the receiver commodati estimati in general suscipit omne periculum, and that is properly commodatum estimatum ubi intervenit taxatio pretii: and though there may be such a commo­datum estimatum as is mentioned in the reply, yet, that omne com­modatum estimatum is of that nature is denied, and seing the an­swer is founded upon an express and general Law, it cannot be ta­ken away but by a Law as express, clearing, that there is no com­modatm estimatum but in the case instanced in the reply. Like­as the Interpreters, and particularly Faber, ad h. l. give instances of [Page 67] commodatum estimatum, in the case where the thing estimat is to be restored, and estmatio in general produces that effect of trans­ferring the hazard as will appear, per l. 1. [...]. 1. ff. de estimatoria; by which it is likewayes clear, that if the thing it self be not given back, the estimation must be delivered, and that the estimation extends not only ad deteriorationem, sed etiam ad interitum. Like­as in the general, estimatio is called a kind of vendition, as is clear by Calvin, in his Lexicon upon that word, and the citations there adduced; and in venditions, the receiver undergoeth all hazard, and therefore he should run the same hazard in com­modato estimato. As to the second, It is answer'd, that he who is oblieged to deliver any thing free from all hurt and dam­nage, is much more oblieged to deliver back the thing it self, for it is probable, that he who guarded against the lesse danger, would guard against the greater.

Whereas it is alledged, that this must be the meaning of the parties, the former rules are oppon'd, and it is added, that this case could never be called casus insolitus, nor fortuitus, in re­spect that is casus fortuitus which the skillfulest or wisest man could not foresee; but so it is, every wise or prudent man might have, and could not but foresee this; and the brokard rei gerendae aptior is only extended to regular Contracts, but not to irregular Contracts as this is, wherein it is confest, by both parties, that they intended to transgress the ordinar rules and nature of commodatum estimatum, and to wrest the nature of this Contract to their particular case; and certainly, sensus aptior rei gerendae at that time was, that the lender, who might have secured his own Guns, and who was not oblieged to lend them, did design to secure himself against all hazards, when he caused estimat his Guns; else, why should he have caused estimat them? And to the third, where it is alledged, that the raising of Guns out of sand is not the hazard which Guns ordinarily run; It is answered, that the burying and sinking of Cannons is very ordinar; but it being foreseen in [Page 68] general, that these Guns might perish by the Usurpers, and in that quarrel, that was sufficient, though every particular circumstance was not foreseen: for if the Guns had been stollen away by night, or had been taken in the return, certainly the receiver would have been lyable; and yet that is not a more ordinar way of lossing Guns, then this now instanced.

To the fourth, bearing, that those Cannons had been lost however; It is answered, that the charger is not oblieged to debate what hazard they would have run, he having secured himself by a Bond, as said is, and that might be aswell alledg­ed in venditions, and yet none ever alledged, that the buyer did not run all hazards of the thing bought, and was not oblieg­ed to pay the price, because the seller would have lost the thing sold, if it had remained with him: but the truth is, the Skipper, nor no Burgess of Dundee wants any of those Guns which were aboard in their Ships at that time; and it is probable, that though the Ship and Goods had been taken from this pursuer, he had none to blame but these Defenders, who by borrowing his Goods, dissabled him to venture to Sea with his Ship: nor can it be imagin'd, that the burying of Goods in presence of the whole Town, and leaving their Carriages open to the Usurpers, was exact diligence; nor did ever the receivers, after the Guns were taken away, either inform the chargers that they might do diligence, or make applica­tion to the Usurpers for restitution, as Dundee, St. Johnstoun, Crail, and other Towns did; and wherein they prevail'd so, that these Defenders are not only lyable ad casus fortuitus ex natura commodati estimati, but for not doing exact diligence, ex natura commodati proprii.

The Lords found, that the Borrowers were not lyable to pay the price, since the Cannons were lost casu fortuito, & vi majore.

For Sir Thomas Stewart of Gairntully, against Sir William Stewart of Innernytie.
FIFTH PLEADING. How Fury and lucid Intervals may be proven.

THe deceast Sir William Stewart, finding his Daughter Jean fit enough to marry, did provide her to a Portion of twenty thousand Merks; in which, though he sub­stitute Sir William her Brother and others, yet your Lordships did, by a solemn decision find, that she remained still in the Fee, and might have disponed, notwithstanding of the quality of the substitution, and therefore you did sustain a Right and Assigna­tion made by her in favours of Sir Thomas her Brother.

Sir William resolving rather to hazard the honour of his Fa­mily and Sister, then the loss of the Sum; did at last alledge, that the Assignation was not valid, seing his said Sister was fu­rious, both before and after the granting of that Right: where­as Sir Thomas, in maintenance both of his Sisters honour, and of the Right made by her to him, did contend, that she had dilucid Intervals, and at the time when the Disposition was granted, she was sanae mentis; for proving of which, mutual probation was allowed to both Parties, and the Testimonies having been published, It is now alledged for Sir William, that albeit your Lordships had found that his Sister was in Fee, when the case [Page 70] was at first debated, without relation to the condition in which she was when she made the said Right; yet, though the Substi­tution was found by your Lordships not to be a sufficient ground to take from her the power of disponing, it behoved at least to qualifie the said power, as that she should not be allowed to dis­pone upon that sum expresly against the Fathers destination, except she were proven to be a person of an entirely sound judgement; and it behoved to be thought, that the Father per­ceiving the frailty of her wit and spirit, did only design she should have an aliment during her life, but that after her decease, the sum provided should descend to the person substitute by himself. 2. Furiosity is a disease which so disorders the judge­ment, that those who labour under it are in Law accounted unfit to make any Right, or to adhibit any consent; and fury being once proven, is still presumed to continue: So that it being proven that this Gentlewoman was once furious, in so far as she tore her Cloaths, and did beat them who attended her, it must be presumed that this fury did continue, except this were taken off by a most pregnant probation, wherein she could be proven, not only to have done acts of folly during the time that she was about the compleating of that Right, but that she had for a long time, both before and after, enjoyed not only adumbratam quie­tem, but an entire soundness of judgement, neither tainted with, nor clouded by that fury, which did formerly incapacitat her to make the Right that is now quarreled. For all Lawyers, and particularly Zaccke [...]s, do distinguish betwixt a madness, which hath only remissionem, sed-non intermissionem, where simplicity continues when the fury ceases, and that fury which doth some­time totally recede: In the first of which they require, that the persons quorum furor est intervallatus, do not only actus sapienti convenientes, sed etiam actus sapientis, and that they shew not only a present madnesse, but that they testifie by a long tract of continued recipiscence, a sagacity, which proves that they are fully returned to the vigour of their judgement, and which is [Page 71] able to take off the presumption which lyes against them, that semel suribundus, semper furibundus prasumitur. Whereas, in the case here contraverted, its prov'd, that the said Jean was at best of a very weak judgement, never able to converse with others, nor to administrate her own affairs; and at the time she made the Disposition, there is nothing proven which could have demonstrate her to have been in such a lucid interval, as might have sustained the act she was then doing, she having discours'd to no man at that time, nor so much as read the Disposition, which no wise person would have omitted, and having contra­dicted her Fathers express will, without gratifying any of her other Relations.

But before any distinct answer can be return'd to the former representation, your Lordships will be pleased to consider, that the two greatest priviledges of mankind are, that by Nature he is a reasonable Creature, and that by Law he may freely dis­pone upon what is his own; Whereas, this unnatural Brother, designs to rob his Sisters memory of both these allowances, and by denying her every thing that is fit for a reasonable Creature, burdens himself to prove her a Brute. Somewhat is due to the modesty of her Sex, more to the being dead, (that great Sanctuary against all malice) but most of all is due to the name of a Sister; and therefore, seing by how much the danger is great, that may result from the probation, by so much the probation ought to be the more concluding and preg­nant: It doth necessarily follow, that the probation to be deduced in this case, ought to be most conclusive, seing it tends to take away the greatest priviledges which were competent to the Defunct, either by Law or Nature. And albeit our Law allows not the depositions of Witnesses, to prove in cases ex­ceeding one hundred pounds; yet, by this method, Dispositi­ons of the greatest consequence may be enervat, upon the depo­sitions of Witnesses, and that just Law not only disappointed, but cheated: and what danger are we exposed to, when two [Page 72] fellows may, by their assertions, prove us to be mad, after our death, and thereby disfame our memories, and alter our destina­tions? The settlement whereof, is the most serious earthly satisfaction which we have in that last Agonie.

It is very remarkable, that Law puts a difference betwixt fatui­ty and furiosity. Fatuous persons, whom we call Idiots, are these who want spirit enough, tardi, bardi, moriones, maccarones, qui inopia caloris & spirituum laborant: But furious persons are such, as have too much heat and spirit; and our Law hath placed a distinction betwixt these two; for though neither Idiotry nor Furiosity can regulariter be proven, otherwayes then by the cognition of an Inquest upon B [...]ieves rais'd out of the Chancellary, as is clear by Craig, and by the 66. Act. 8. P. J. 3. which Inquest must consist of fifteen neighbours, who knew the person who is alledg'd to be furious or idiot, and who must call for that person before them, and examine her; so zealous our Law hath been for our honour, and so jealous of Witnesses. Yet, sometimes it hath permitted open and notorious fury to be proven after the death of the furious per­son, as in the case cited; but no instance can be given, where­in Fatuity or Idiotry, was ever sustained to be proven after the Idiots death: which was most reasonable, for Idiotry consist­ing in the want of wit and judgment, which habitude is not subject to the senses, but must be inferred by conference and consequences, therefore it should not be sustained upon the depositions of Witnesses simply, but upon the knowledge of an Inquest, who are in our Law both Judges and Witnesses, and are in quality and prudence, above Witnesses. And if a person can count their ten Fingers, they are not accounted Idiots, nor fatuous; for, fatui sunt (as Zackeus observes) illi tantum qui omni ratiocinatione & judicio carent. So that this Gentlewoman cannot be proven to have been fatuous, being now dead; but though she were alive, and that the probation led might be legally receiv'd, yet she cannot upon [Page 73] that probation, be said to be fatuous, seing it is proven, that she gave money to buy Necessars, that she came to Table, went to Church, convers'd with Neighbours, and ask'd for her Friends at strangers who had seen them, and that she carry'd her self ordinarily as other Gentlewomen did, or ought to have done.

Lawyers sometimes speak of imbecillitas & debilitas judicii eorum quae sensum aliquem habent, licet diminutum; and such are by all Lawyers allowed to Marry, and make Testaments, &c. as is observed by Gomez. Resol. tom. 1. c. 6. Grass. in § Test [...]m. quest. 21. and thus it was decided, 27. Octob. 1627. in Friz­land, as Sand. lib. 2. Def. 2. relates; and this at worst is our case: for all that can be alledged against this unfortunat Gentle­woman, is, that she was of a slow and dull humour, as Melancho­lians are, these hypocondriack vapours being to their Spirits, what storms are to the Sea, which though they disturb them for a while, yet cannot they hinder them from returning fully to their former calm.

Before I come to clear, that she was not furious, your Lord­ships will be pleas'd to know, that furor is defined to be de­mentia cum ferocia & horrenda actionum vehementia; Fromanus, de jure furiosorum, p. 6. In Law he is said, omni intellectu carere, l. 14. ff. de officio, presid. qui nec scire nec discernere potest, l. 9. ff. de acq. haered. qui caret affectu, l. 7. §. 9. quib. ex caus. in possess. qui caret omni judicio, l. 12. §. 2. ff. de judici. And because prudence is qualitas quae inesse debet, ideo nemo praesumitur furiosus, sed potius sanae mentis; and two Witnesses, depon­ing de sana mente, are preferred and believed more then a hundred who depone upon fury, Menoch. Lib. 6. pre­sumpt. 45.

Lawyers divide fury, in continuum, ubi animus continua mentis agitatione semper accenditur & interpolatum, seu inter­vallatum, qui dilucida habet intervalla, quorum furor habet indicias, & quos morbus non sine laxamento aggreditur, l. 9. c. qui [Page 74] test. facere poss. & quos furor stimulis suis variatis vicibus ac­cendit, l. 6. C. de contr. empt. In whom fury is but an ague: madnesse is but a disease in the one, but it is the temperament and the complexion of the other; in the one the judgment is but darken'd as by an eclipse; but in the other, it lyes like the Cimmerians under a constant night. That this was not a continued fury, is clearly proven; for the depositions bear, that she was only seiz'd with these fits that troubled her, twice or thrice in a year, and that at other times she had, non solum remissionem, seu adumbratam quietem, sed etiam intermissionem & recipiscentiam integram, for they depone, at other times she was as well as Gentlewomen are, or ought to be.

That which is contended then is only, that the lucid in­tervals are not clearly proven, at least it is not proven that she at the time of the subscribing that Assignation, and for a considerable time before and after, was in a lucid interval; but the contrary will, I hope, appear from these positions.

First, by the probation it will appear, that she was never mad and furious; for she at no time wanted all sense and judgement, albeit she was at sometimes opprest with an over­flowing and abounding melancholy, which distemper differs clearly from madnesse, as Zackeus observes very well, lib. 2. quest. 9. Melancholici (saith he) sunt timidi & merentes vel ridi­culi; Furiosi vero in perpetuo mo [...]u audaces, ac praecipites. And it will appear from the probation, that she went to Table, to the Church, and to all Societies, which is not allowed to mad people; that in her fits, she did only laugh and sing, and when she did begin to talk idlie, the least sign would have made her recover her self, which is a clear sign of melancholy, but no wayes of madness. And the Father, who best knew the condition of his own daughter, was so far from thinking her mad (as is pretended) that he left her a considerable portion, which implyes not only a liberty, but an invitation to Marry: Whereas if he had thought her mad, doubtlesse he had only [Page 75] left her an Aliment, but no Portion, and would have re­commended, that she should not Marry; for what Father desires to have his Family disgraced, by giving out a mad Daughter? And the Physitian also depones, that she was only troubled with a melancholy; which humour, though when it boils over, will occasion great distempers, yet, that stock of vapours being spent, the Brain returns, or rather continues, in its natural and exact temper.

2. The Witnesses who depone can give no such account of their causa scientiae, as can infer madnesse, for she being, as they confess, alwayes removed to her Chamber, when her distemper did shew its first twilights, they could not exactly know that habit of the minde, that is necessar to be known in such cases; Whereas, the causa scientiae they give is, that they heard her commonly repute mad: And one depones, that passing by her Chamber-door, he saw her laugh and sing, and heard her talk idly, which was too transient a way to know the nature of a distemper, which the Law ordains to be known by conference, and frequent conversation.

3. Albeit in Law, Semel furiosus semper praesumitur in furore perstitisse, yet when lucid Intervals are once proven, as is very clearly proven here, Quod actum erat, potius prae­sumitur in dilucido intervallo, quem in furore gestum, si actus ita gestus fuerit, ut nullum stultitiae signum appareat. This Mascard. gives for a rule, conclus. 826. and there he cites, afflicit. decis. 143. Jason. ad. l. furiosum, C. qui Testa­mentum facere possunt; and Covarr. de sponsal. part 2. cap. 2. And thus the Roman Senat decided of old in Testamento Tuditani, cited by Val. Max. lib. 7. cap. 8. So that albeit where the Intervals are not proven, it is requisit, that actus sapientis, and the condition of the person before and after for a considerable time, be proven, to make the act appear to be wisely done; yet, where the lucid Interval is proven, actus sapienti conveniens for the precise time is sufficient, for els [Page 76] the proving prior lucid Intervals should be unnecessar, seing though prior lucid Intervals were not proven, yet it would be sufficient, that the act were actus sapientis, for that per se is exclusive of madness.

4. The Nottar doth assert in the Assignation, that at the time she was of a sound judgement, upon which certainly he would have depon'd, had he been alive, so that he is now a proving Witnesse: and Froman. p. 81. thinks the Nottars assertion in such a case of great moment. But above all, that which convinces me is, that Sir Thomas being interrogat upon his oath, whether he believ'd she was then of a sound judgment, doth depone affirmative, and though this be only an oath of calumny, yet it is equivalent to an oath of verity, nor do they differ; Nor could an oath of verity be more express, and so not more proving.

And whereas it is contended, that this Act was of its own na­ture, rather a sign of madness, then of prudence; seing she did not read over the Assignation which she subscrib'd, and seing she oblieged her self therein, not to marry without her Fathers consent, and that she therein altered that destination made by her Father:

It is answered, that at the time of her subscribing that Paper, she desired that a Nottar might subscribe for her, because she could not write; and when the Nottar told her that she behov'd to subscribe her self, else the Paper would be null, she called for it then and subscribed the same, which shew that she could reason and deduce consequences, and that she desired earnestly to have her Brother Sir Thomas secure of what she did; and albeit women can (because of there sex and imployments) show but little sa­gacity; yet in this she discovered actus sapientis, as well as sapi­enti conveniens. And albeit it be not proven, that the Paper was not read over, yet since the contrary is not proven, it must be presumed to have been done, per argumentm à solitis. And seing Sir Thomas was the eldest Brother, and had entertained [Page 77] both her and her Mother, it was most reasonable that she should have left him her Estate, being the stock of the Family; and she being bred up in a kindness for him by their Mother, whose choice she was oblieged to approve, being then in one Family with them, and her only Parent. And it was most just, that her eldest Brother coming in place of her Father, she should have taken his advice in her Marriage: which advice was not in Law binding, nor would she have fallen from the right of her Provision, though she had refused his advice; so that in this, she honour­ed her Brother, and pleased her Mother, without prejudging her self.

Secure then (my Lords) in this precedent, our Names against infamy, and our Estates against the lubricity of Witnesses, and ar­bitrariness of Judges; and give not occasion to Witnesses in one Act, to perjure themselves, and ruine us and our Posterity: And gratifie not the avarice of a Brother, who digs up the ashes of his defunct Sister, to find that sacrilegious Prey which he hunts after; but let him see by your sentence, as an earnest of Gods just judgement, what he deserves who calls his Brother a fool, much more, who for money takes pains to prove his Sister such.

This Case was submitted to the Lords, and the Sum was divided equally by them, as Arbiters.

For the Laird of Miltoun, against the Lady Miltoun, November, 1669.
SIXTH PLEADING. In what case a Sentence may be reduc'd, by a Reprobator of the depositions of the Witnesses whereupon the Sentence was founded, and by what probation Sentences may be reprobated.

I Tremble (My Lord) to think, that the Fortunes of the best of His Majesties Subjects, should be, by the fatal necessity of our Law, laid open to the malice and avarice of the meanest, and worst Witnesses: And though we know, there be thousands who would hazard their own damnation; to satisfie either their revenge or avarice; yet if any two of these Witnesses, should conspire to satisfie their designs, either by deponing that which is absolutely false, or by con­cealing what is really true, to the ruine of our Lives or Estates, it is pretended, that our Law hath invented no civil reme­dy. This (my Lord) were to make the Law authorize the robbing of Innocents, and to suffer no man to possesse his Fortune, longer then two Rascalls pleases; Wherefore, it is my design, to vindicat both our Law, and my own Client, and to show that your Lordships justice is appointed as a City of refuge, and that you can, by your Reprobators, defend us [Page 79] against their depositions. But because this subject hath been but very unfrequently and darkly handled amongst us, albeit it have in it very much both of intricacy and concernment; I hope your Lordships will allow me so much more of time; and seing ex facto jus oritur, I shall, to the end the point of Law may be the better understood, thus open to you the matter of Fact.

The deceast Laird of Miltoun did match himself in a second Marriage to this Lady, to whom he did, with the greatest part of his Estate, give his chief House in Jointure; and after his decease, she having married John Maxwell her present Hus­band, they did take as much pains to destroy the house, as the Law oblieges them to take in preserving it: which abuses did put a necessity upon Sir John Whitefoord my Client, to whom the Estate belongs, as Son and Heir to the deceast Miltoun, to buy the said Maxwells right, which he had to her Jointure jure mariti; and after that her Husband and she had received a sufficient price for it, they did enter upon an unworthy design, of retaining both the Land and the Price; and in order thereto, it was plotted, that the Husband Maxwell should go off the the Countrey, and that this Lady his Wife should pursue a Divorce against him, as having committed Adultery; During the dependance of which Process before the Commissars, find­ing, that the Reduction of this Right (which fell in conse­quence of the Reduction of the jus mariti) was chiefly aim'd at, Miltoun offer'd to appear, and object against the Witnesses, who were led to prove the Husbands Adultery, and which Witnesses were persons known to be of very torn and unsound fame, and very lyable to all impressions; but he was not ad­mitted: whereupon he rais'd Reduction of the Commissars Decreet before your Lordships, upon several reasons; two whereof were, 1. That the Lady had brib'd the Witnesses. 2. That she had suggested to them what they should depone, instructing them what Faces and Cloaths these Women had; [Page 80] which reasons your Lordships found not competent by way of Reduction, but by way of Reprobator.

When this Reprobator was, in obedience to your ordinance rais'd, it was alledg'd, that there could be no Reprobator now pursued, since it was not protested for, at the time when the Witnesses were led; but this was repell'd, both because your Lordships had reserved a Reprobator already, which was equivalent to a Protestation; and because the grounds of this Reprobator are but lately emergent, since the receiving of the Witnesses, and were not then known. And as Du­randus, that learn'd Practitian observes, tit. de reprob. testium, num. 2. Quod si actor paratus sit jurare, quod ad hoc, ex malitia non procedit, vel quod post publicationem, didicit id quod nunc objicit, tunc auditur sine protestatione; and cites for this, cap. presentium extra de test.

The Lady finding her self in hazard to loss both her Jointure and Reputation by the event of this pursute, she now alledges, that these grounds of Reprobator are not relevant, nor re­ceivable; 1. Because when Witnesses are sworn they are purg'd of partial counsel, of the receipt or expectation of good deed; so that this being res hactenus jurata, it cannot be thereafter search'd into by him who referr'd the same to Oath, & detulit juramentum; nam dum detulit, transegit. 2. Though the corrupter or suggester may be punish'd paena falsi, yet the sentence pronounced upon these depositions, can never be reduced. 3. If this were allow'd, there should be no end of Pleas, sed lites essent immortales; for the first Wit­nesses might be reprobated by other Witnesses, and these by others, and these by others; & sic daretur progressus in infini­tum. 4. Though corruption were receivable, yet it were only probable by the Oath of him who obtain'd the Decreet.

Before I come to make particular answers to the difficulties proposed, I shall remember your Lordships in the general, that Probation being defined by Lawyers to be, fidem facere [Page 81] Iudici, to convince the Judge of what is alledged, probation by Witnesses is no infallible, but only a presumptive probation; for it is founded upon no other warrand, then that it is presum­able, that two dis-interested persons will not, by loosing of their own souls, gain any thing for a third party; so that this kind of probation seems rather to be introduc'd by necessity, then choice. And albeit at first, when the fear of a Deity did sway the World, and before men had absolutely lost their primitive innocence, and in place of it had learn'd those cheats and falshoods, which have grown up with time; that probation seem'd to be very well founded, and two Wit­nesses were sufficient in all cases: yet, Lawyers finding infide­lity daily to grow, have accordingly daily lessened their esteem of that proof; so that the civil Law did begin to re­quire sometimes five, sometimes seven Witnesses: our old Predecessors establish'd Assizes of fifteen sworn neighbours, who because they were both Judges and Witnesses, had liberty to allow as much of the deposition of Witnesses, as they thought fit; and thereafter, upon furder experience, it is statute with us, that no Witnesses can be received in cases above a hundered pounds: and in Holland, Italie, and several other Countries, the deposition of Witnesses cannot prove a crime, and are made no further use of, then to subject to the torture, the person against whom they are led.

Lawyers have likewise, as a furder check upon these depo­sitions, even in these cases when they are necessar, ordain'd the punishment of perjury to be severe, ob vindictam publicam, and allow'd an action of Reprobator for redressing of the parties wrong'd, suitable to the two wrongs which Witnesses com­m [...]t in their false testimonies; in the one whereof they pre­judge the Common-wealth by the example, and by the other, the privat party, in the deposition it self.

Reprobator is by Lawyers defined to be, an action, whereby the Judge rescinds a former Sentence, because of the falsenesse [Page 82] of the deposition, or because of the corruption of the Wit­nesses. And the deposition of every Witness hath in it two parts, viz. Initialia testimoniorum, & dicta testium: Initialia testimoniorum, are, the previous circumstances premised by the Practique to the depositions, whereof the chief are, Whether the party be married? of what age they are? where they dwell? &c. which would be very impertinent inter­rogators, if the Law did not intend to make use of these, as marks, whereby to try the faith and trust of the deponers. There are likewise other interrogators, which, though they be used as Initialia, yet certainly are essentialia, and grounds of Reprobator, though the Witnesses do not at all depone upon them; such as, Whether the party hath suggested to them what they should answer? or hath corrupted them? yet, the parties use ordinarily to depone, if they get good deed, or were instructed. The dicta testium are the body or matter of the depositions, which relate principally to the thing contra­verted; and albeit some Lawyers dispute, whether the de­positions of the Witnesses can be reprobate quoad dicta testium? because the Witnesses are there contestes, and when two of them agree in one, to reprobat these were in effect to overturn a formall probation; yet in initialibus they are not contestes, but every one depones singly upon what concerns himself, and is likewayes concern'd himself in what he there depones; so that in these, both singularity and interest dero­gat very much from the truth of what is depon'd; and in this case, I intend not to quarrel the dicta testium, but the initialia testimoniorum.

These grounds being laid down, my answer to the first difficulty is, that the first defence, wherein it is contended, that the Witnesses having been interrogat, whether they were brybed or instructed? and having denyed the same upon Oath, their depositions cannot be now reprobated, upon the heads of suggestion or corruption, is most irrelevant, for these [Page 83] reasons; 1. The party against whom the Witnesses are led, hath no time allow'd him to enquire what the Witnesses are, who are to be led, and though he have relevant objections, v g. if he be inform'd, that they are instructed or corrupted, he must instantly verifie these objections, els they are not re­ceivable; so that to deny him the liberty of causing the Judge purge the Witnesses, by their Oath, of any suspition, were in effect to take from the party his greatest security; and sure, no person would desire that purgation, if he thought that he would be thereby cut off from the benefit of Reprobator. 2. If this were allow'd, it were easie to cut off all Reprobators; for the leader of the Witnesses might still cause purge them, and oftimes the Judge doth it, ex proprio motu; neither is it marked in the deposition, whether the Witnesse is purg'd by the Judge at the desire of the Pursuer or Defender, but singly, that he being interrogat, depon'd, &c. So that in this case the person, against whom the Witnesses are led, should be prejudg'd without any act of his own. 3. Though a Wit­ness have purg'd himself of partial counsel, yet if he depone falsly, he may be pursued by him, against whom he depon'd, for perjury; Ergo, it is much more competent to the person, to pursue Reprobator in that case; for Reprobator being but a civil Action, is far lesse dangerous. 4. Juramentum purga­tionis is not juramentum decisivum, and is taken, as Lawyers say, non ad finalem decisionem, sed ad majorem cautelam, and being introduc'd for the advantage of the party against whom the Witnesse is led, it were most unjust that it should be de­torted to his prejudice. 5. A Witnesse who purges himself of partial counsel, is but unicus testis, and depones upon his own innocence, and consequently doth not prove; and it were most unjust, that he should in that case be better believ'd, then two famous Witnesses omni exceptione majores, and who depone upon his prevarication; and if this priviledge were given to an Oath of purgation, it would tempt men to le [...] [Page 84] debauch'd Witnesses, and them, when they are led, to depone ar­bitrarily; knowing that they can by their own Oath, clear them­selves of any thing that might be objected against them, and that the Oath which they give, cannot only secure the party for whom they depone, but themselves against all hazard. And lastly, Lawyers who have treated very largely of this subject, have made no such distinction as this, but on the contrair, by doubting only, whether dicta testium can be reprobat, be­cause the Witnesses there are contestes, as said is; They clearly insinuat, that in all cases, where the Witnesses are not con­testes, their depositions may be reprobat.

To the second defence, wherein it is contended, that the effect of a Reprobator is not to reduce civilly the Sentence, nam sententia semel lata pro veritate habetur; but that the only effect of it would be, to punish the parties corrupters, or the Witnesses corrupted, by a criminal Sentence. To this it is answered, that the alledgance is contrary to the grounds of all Law, and to the opinion of all Lawyers. 1. A Repro­bator is in their opinion, species revisionis; as is clear by Farin. Durandus, practica Ferarien. and many others, and Revisio, in the dialect of Lawyers, is the same thing that Reduction is with us. 2. Seing Witnesses wrong both the Common-wealth by the example, and the privat party by the deposition, and since it is very just, that every wrong should have a suitable remedy, and seing the prejudice done by the example, is only remedied by the criminal Action; it is necessar, that the party laes'd should be assisted by a civil Reduction: and it seems very unjust, that the Witnesses should be punish'd criminally, and that it should be acknowledged, that the party was wronged by the flase witnesses, and that yet the losse should not be repair'd. 3. Per l. 33. ff. de re judicata (which I may call the fundamental Law of Reprobators) It is clear, that both a civil and a criminal remedy are granted: the one, in these words, rem severe vindica, and the other, in these words, in [Page 85] integrum restitue. The Law it self runs thus, Hadrianus aditus per libellum à Julio tarentino, & judicante eo, falsis testimoniis, conspiratione adversariorum, testibus paecunia cor­ruptis, religionem judicis circumventam esse, in integrum causam restituendam; in haec verba rescripsit, exemplum libelli dati mihi à Julio tarentino, mitti tibi jussi, tu, si tibi proba­varis, conspiratione adversariorum, & testibus paecunia cor­ruptis, oppressum se, & rem severe vindica; & si quae à Judice, tam malo exemplo circumscripto judicata sunt, in integrum restitue. Which is likewise confirm'd, per l. si quis c. de adult. Et ita voluerunt Alexander, consil. 148. & Lud. Bologn. consil. 5. And by our Practique, Sentences have been reduc'd, and the Party repon'd, when the depositions whereupon the Sentence proceeded, were convell'd by a Reprobator: clear instances whereof are to be seen, the 23. of June, 1633. and 22. of December, 1635. And upon the 5. of March, 1624. in an action of Reprobator rais'd against a Divorce, it was found, that the offering to corrupt one of the Witnesses, was sufficient to re­duce the Decreet of Divorce: Whereas, here it is offered to be proven, that both the Witnesses were corrupted, and if the deposition could not be quarreled in order to a civil effect, there needed no Reprobator at all; for the criminal action of Perju­ry would reach the other effect, and the Lords of Session, before whom Reprobators are intented, would not be at all Judges competent. 4. This opinion, both of the Civil and of our Law, is founded upon very just Principles; for the Sentence be­ing in that case founded upon the depositions, these being re­moved, the other should fall in consequence, nam sublata causa, tollitur effectus; and therefore, Lawyers say, that testes repro­bati pro non testibus habentur, Durand. ibid. and to allow a Decreet after Witnesses were reprobat, were in effect, to allow a Decreet without probation. 5. When a Decreet is founded upon a Writ, if that Writ be found false, the Sentence is re­duced; as is clear by the whole Title, Cod. Si falsis instrumen­mentis, [Page 86] &c. and therefore, much more should Decreets be re­duced, depending upon the depositions of Witnesses which are reprobat, there being at least eadem paritas rationis.

As to the third difficulty proposed, which is, that this would progredi in infinitum, and there should be no end of Plea's, which objection is propon'd by Abbas, ad cap. proposuisti de probat: It is answered, that this Argument, if it prove any thing, will p [...]ove that no perjury should be pursu'd, nor proven; becau [...]e, it is urg'd in this case, it may be urg'd there likewise, that these Witnesses who prove the perjury, may be proven perjur'd by others, and these by others; and by the same argument also, we should have no Assises of Error, because, if a first Assise may be tri'd for error, why not that Assise by another, &c. But this diffi­culty is easily sav'd, for Reprobators should not be sustain'd in all cases, and it is only remedium extraordinarium ex nobili officio proveniens, and should only be granted, when the reason of Re­p [...]obator is found most relevant, and is offered to be proven by Witnesses omni exceptione majores; and to deny it in that case, were great injustice. As for instance, if I should offer to prove, that albeit it were proven by two fellows, that I married Bertha in Paris such a day, whereas I offered me to prove, that the same day I pleaded before your Lordships in this House, and which were notour to all your number, were it not unjust to refuse to reduce a sentence, which were founded upon that first probation?

It is most groundlesly alledged in the last place, that though corruption of Witnesses were allowed to be reprobated, by an Action of Reprobator intented before a Decision in the principal Cause; yet no Reprobator could be pursu'd, after a Decreit ob­ta [...]n'd in the principal Cause; for els no singular Successor could be secure, since his Right might still be reduced or reprobated by W [...]tnesses, and so Sentences could be no sufficient security to such as were assigned to them; as also, post publicata testimo­nia & sententiam, the losser of the Cause should still intent [Page 87] Reprobator, knowing what the Witnesses depon'd; at least the corruption of the Witnesses, should not be then probable any other way, then by the Oaths of the corrupter himself. To which it is answered, that Reprobators are in Law allow'd, aswell post sententiam, quam durante primo processu, as is clear by Farinacius and others; and there is no hazard of the publication of the Testimonies, because the question is not, whe­ther the Testimonies & dicta testium can be reprobated? for that is not here contended, but whether the initialia can be reprobated, which initialia use to be interrogat in presence of the Parties, and so there is no hazard of publication there: nor did ever any Lawyer alledge, that corruption was only probable by the corrupters oath, and this were most unreasonable, as will ap­pear from these Arguments, 1. Corruption is facti and falleth under sense, and therefore is of its own nature probable by Witnesses. 2. Corruption could cast or set a Witness, before he were examined, and co Casu would be probable by Wit­nesses, why not then after he has depon'd? for by our Law, as by the Civil, noviter provenientia ad notitiam & emergen­tia, are receivable and probable, eodem modo & ordine, as they ought to have been, if they had been sooner known; and se­ing all objections against Witnesses, are only receivable with us, if they be presently proven, it were unjust not to admit emergent Objections or Proofs. 3. This were to make Wit­nesses most licentious and arbitrary, for the Parties may give, and the Witnesses take bribes, sub spe impunitatis, if they knew that they could not be found out, but by their own confession, and in effect this were to allow perjury, and to invite men to it. 4 It is most presumable, that these who have brib'd, will perjure, and so their oaths cannot be believ'd; and therefore, the Law must either declare, that corruption is no ground of Reprobator, els that it is probable by other Witnesses, and media probandi, then the oaths of the bribe [...]s, or bribed. It was never denied, but that a Decreet obtain'd by collusion of Advocats or Clerks, [Page 88] might be reduc'd, upon full probation of the collusion by the oaths of those Advocats or Clerks, else any of these by com­pearing, or omitting a Defence, might bind one hundred thou­sand pounds upon any of the Lieges: and since it is confest, that the Civil Law and the Doctors do in this case allow pro­bation by witnesses, I see not why our Law should not admit it. They were as zealous for the Authority of Sentences, as we are, and Perjury is more frequent now then of old; and though our Law doth not allow probation by Witnesses, in cases above one hundred pounds, yet that Law was only made to regulate the original probation of Debts in the first instance, but not the re­probating Sentences. And it were against reason and justice, that a Decreet that was obtained upon the depositions of Wit­nesses, should not likewise be quarrelable upon the depositions of other Witnesses proving corruption, these reprobating Wit­nesses being above exception, and such persons as the Judges may think fit to admit, whose choice will in this case, cut off the hazard of a processus in infinitum: Seing it is not probable, that Judges will allow any such persons, as may endanger the interest of him against whom they are led, this power can be no where more securely depositat, then in this Illustrious Senat, whose frailty is much less to be jealous'd, then is that of Wit­nesses; and though the constitution of a Debt cannot be prov'd by Witnesses, where there is no other probation; yet it follows not, that a Decreet founded upon a matter of fact, and upon the depositions of Witnesses, may not be taken away or reprobated by other Witnesses: for, though where Debt is lawfully con­stitute, it cannot be taken away by Witnesses, yet the case here contraverted is, whether the Debt was lawfully constitute? and the alledgeances are corruption, alibi and other matters of fact; and though a Decreet has interveen'd, yet that doth not so alter the nature of the thing, as to make it leave to be a matter of fact, and the defences emergent, since the Decreet and matters of Fact are still probable by Witnesses.

[Page 89] It is unjust, that what was first purchased by Witnesses, should not be tryed by the depositions of Witnesses, Eum debet se­qui incommodum, quem sequitur commodum; & nihil est tam na­turale, quam unumquodque eodem modo resolvi, quo colligatum est. And as when I pursue upon a false Bond, the falshood of that Bond is to be tryed by Witnesses, our Law doth not force the Defender to refer the truth of the Debt, or of the matters of Fact, to the oath of the Pursuer: Even so, when a man is pur­sued upon a Decreet, which is obtain▪d upon false grounds or corruption, why should our Law force me to refer the truth to the Pursuers Oath?

Sure, if ever Reprobator was granted, it ought to be in this case; wherein my Client offers to prove, that this Lady (whose Sex I am loth to wrong in her person) did bribe these Wit­nesses, and instructed them verbatim what they should de­pone; this is offered to be proven, not only by their own con­fession, but by the deposition of many, who are more nume­rous, and more famous, though their own confession proves them to be vaccillant, and faithless Rascalls, and who though they should not be believ'd in any case, yet ought to be be­lieved as well in this retraction, as in their first deposition, and who can enervat, though they cannot astruct, their own testimonies; and this probation ought to be received, against the deposition of two Villains, who stand condemned by common fame, which is sufficient to hinder them from being Witnesses omni exceptione majores, and are condemned by the K [...]k-session for keeping Baudy-houses, wherein they have shak'd off that fear of God, which is the ground of the Faith we give to Witnesses, and have learned by pimping persons, to pimp Plea's. I am here in defence of a Marriage, quae est causa maxime favorabilis, and the dissolution whereof requires a probation per testes omni exceptione majores; and it is very pro­bable, that a woman who is so impatient in those holy Bands, [Page 90] and so malitious against her own Husband, as to asperse him with every thing that may lessen his reputation with your Lordships, would not spare to have dealt so with the Wit­nesses, as might best effectuat her designs, knowing that if she prevail'd not, she behoved to return to the society of a Hus­band, whom she had so highly disoblieged, to misse the en­joyment of that Jointure, which she so ardently expected; and to be justly branded, for having so malitiously and causelesly defam'd so sacred a Relation.

The Lords sustain'd the reasons of Reprobator to be proven by Witnesses, omni exceptione majores.

For the Lord Balmerinoch, against the Lady Coupar, Feb. 1670.
SEVENTH PLEADING. How far a Disposition, made by a man, in favours of his Lady, of his whole Estate, is reduceable, as done in lecto aegritudinis.

MY Clients (My Lord Chancellor) this day, are not the Lord Balmerinoch only, but all such as either may be Heirs, or Husbands; And by how much greater there Estates are, by so much the more they are con­cern'd in this discourse: wherein I design to assist them when they are upon death-bed, which is an occasion, at which not only their wit and memory leave them, but wherein they are oft deserted by all other Friends, besides these who design to prey upon them. And I am so zealous in this service, that I cannot detain my self any longer, from opening to you the matter of fact in this Cause, which may be saved by its very merits, if ever any was.

The case (my Lord) stands thus. The late Lord Cupar had, by his Fathers kindnesse, and out of the Estate of the Family, a considerable Fortune bestowed upon him, and what addition it has receiv'd since, is rather the product of so con­siderable a stock, then of that Lords industry: so that he hav­ing died without Heirs, this Estate should have return'd to the [Page 92] Family, not only by a legall succession, but by the rules of gratitude. Yet having in a second Marriage, at the Age of threescore and ten, married a Lady, by whom he got no great Fortune, she induc'd him to dispone his whole Estate, Honours and Title in her favours, and in favours of the Children to be procreat betwixt her and any other Husband (the first bribe was ever given by a dying Husband, to invite a Wise to a second Marriage, and though a Brother may raise up seed, yet we never hear, that a Woman rais'd up seed to her Hus­band) of which Disposition, there is a Reduction rais'd by the Lord Balmerinoch, who is Nephew to the Defunct, and should have been his Heir, wherein he quarrels this Disposition, as made upon Death-bed by the Lord Coupar, after contract­ing of that sickness, whereof he died, and as done in pre­judice of him as appearand Heir.

My Lord, I know, that Legis est jubere, non suadere, and that omnium quae fecerunt majores nostri, non est reddenda ra­tio; yet, this Law, or rather ancient custom, whereby persons upon death-bed can do nothing in prejudice of their Heirs, can justifie it self equally well, by Reason and Authority.

The reasons inductive of this excellent Law, are first, That after men are sick, their judgements grow frail with their bodies; and the soul of man wants not only then, the pure ministry of well-disposed Organs, but is likewise disordered by the infection of the languishing body; wherefore the Law observes, lib. 2. Reg. Maj. cap. 18. vers. 9. Quod si quis in infirmitate positus, quasi ad mortem, terram suam destribuere caeperit, quod in sani­tate facere noluit, praesumitur hoc fecisse ex fervore animi po­tius, quam ex mentis deliberatione. Which presumption seems to be very well founded; for it is not imaginable, that any man who is reasonable, would pull down his own house; and Nature and Reason being the same thing varied under diffe­rent expressions, he who overturns the one, cannot be sound in the other. The second reason is, because men ordina­rily [Page 93] upon Death-bed, being surpris'd with the approach of death, and terrified with the prospect of what follows it, do so little value the affairs of this world, which they begin now to find so little able to repay their criminal pains and love, that to evite the importunity of such assistants, as are like Vultures, busie about the Carrion upon such occasions, they are content to ransome time and quiet, with the carelesse losse of their Estate; and who would not buy time then at a dear rate? So that this Law is the great fence of our sick-bed, as well as of our infirm judgments. The third reason is, the great re­spect our Law bears to ancient and Noble Families, who are the corner-stones of the Kingdom, to whose valour, our Law has oft ow'd its protection, and so could not refuse its to them. And sure, if either the importunity of Mothers, for their younger Children, or of Wives for themselves, could be successful, the Heirs would succeed to a heavy and empty Title: and upon this consideration, the Parliament did lately refuse to allow Parents the power of providing their younger Children to small Portions, upon Death-bed. I know also, that some adde, as an original reason for this Law, the avarice of Monks, and Church-men, who perswaded men to Wodset for them­selves rooms in Heaven, with great Donatives to pious uses; to restrain which excesse, Venice and other Kingdoms have taxt the value of what can be so bestow'd. And albeit the restriction imposed by this Law, may seem destructive of Dominium, which is jus disponendi, and that by the Law of the 12. Table, Ut rei suae quisque legassit ita jus esto; So that this seems to want all foundation either in common, feudal, or the Laws of other Nations. Yet, if we examine, we will find Dominium is in very many moe cases then this, and in more favour­able, restricted by all Laws; and that quaerela inofficiosi Testamenti, is sounded upon the same reason with this Law; and that by the Laws of Spain and Flanders, (so great is the favour of Noble Families) Noblemen cannot at any time [Page 94] dispone their Estates, but must transmit to their Posterity, what ever Lands they got from their Predecessors. But though no Nation joyned with us in this Law, this should rather induce us to maintain it, as being truly a Scots Law; and we must be so charitable to our Predecessors, as to believe, that they would not without very cogent motives, have restricted their own power of disponing, and have receded from the custom of all other Nations; and we should be as carefull of our fundamental Lawes, as the Spainiards are of their privat Estates. And of all persons, against whose importunity the Law should guard us, sure our Wives are the chief, for they have the nearest, and frequentest accesses, the most pre­vailing charms and arguments, and of all creatures women are most importunat, and are most dangerous when disoblieged; wherefore the Law hath wisely forbidden all Donations betwixt man and wife, fearing in this, mutual love and hatred, though in modesty, it hath only exprest the first. And sure if this Donation should subsist, every woman would think her self affronted, as well as impoverished, if she could not elicit a Dis­position from her Husband, of some part of his Estate. And to what condition should a poor man be reduc'd, and with what inconveniences urg'd, when he behoved either to disobliege his Wife, or ruine his Heir, and to load his Fame or his Estate. So that the Lord Coupar hath in this, prejudg'd Hus­bands and Heirs, and hath violated & jus Parentale, & Ma­ritale.

It is alledged for the Lady, that the reason is not relevantly libelled, seing we do not condescend upon a form'd disease, under which the Lord Coupar labou [...]ed the time of the Disposition, and of which disease he thereafter died: Nor is tenderness and infi [...]mity sufficient of it self, to m [...]intain this reason of Reducti­on, especially in old men, whose age is a continual infirmity, and yet is not by Lawyers called a sickness, sickness being a preter­natural, whereas age is a natural infirmity. And this Law being [Page 95] mainly founded upon the presumption, that these who are upon death-bed, have their Judgments and Memories so clouded, and disordered by the sickness which presseth them, that they are either altogether disabled from doing affairs, or at least from doing them judiciously, and according to the rules of reason: therefore such a disease should be condescended on, as influences the judg­ment, and incapacitats the Disponer to understand his own affairs. Whereas it were absurd that old men who keep the house, should be generally interdicted, meerly because they come not abroad, and are somewhat tender, albeit they be otherwise very ripe and mature in their judgment, as ordinarly old men are, Nature having bestowed Prudence upon them, in exchange of that bodily vigour, which remains with those who are young: and it were unreasonable, that if any Person were a little tender, and had not occasion thereafter to come abroad, that a Dispositi­on made by him should ex eo capite be reduced, albeit it cannot be qualified that he died of that disease. Wherefore our Law having restricted the power of Heretors so far, that as they can­not dispone their Estate upon Death bed, in prejudice of their Heirs, it hath most justly appointed, that the disease wherewith they are insected should be condescended upon; to the end it may be known, whether it could influence the judgment or not, or whether or not the Disponer died of that disease: and in all the decisions which concern cases of this natu [...]e, it is remarkable, that the disease is still condescended upon. Likeas, by the 18. cap. lib. 2. Reg. Maj. The reason whereupon this Law is founded, is said to be, quia tunc posset in modico contingenti ejus haereditatem destribuere, si hoc permitteretur, ei qui fervore passionis instant is, & memoriam, & rationem amittit.

To which it is reply'd, that it is libel'd in the reason of Re­duction, that the Lord Coupa [...] Disponer had contracted a sickness, before he had granted the Disposition, which is all is necessar; And it were most absurd, to th [...]nk that the Pursuer should be ne­cessitat to condescend upon a particular disease, and design it by [Page 96] a Name: For this were to make two Physitians absolutely ne­cessar in all diseases, since none are presumed to know the Names and Natures of diseases but they; and there is sometimes such a complication of diseases, and new diseases do so often creep in amongst mankind, that hardly even a Physitian can design them exactly by a particular Name. And it is very observable, that when the Name of a disease is condescended upon in any Deci­sions, it is not by the Pursuer, but by the Defender, who conde­scends upon the same, for clearing either that the disease was not Mortal, or that it did not effect the Brains. But yet when we consider these decisions, we will find, that if the Person had been proven to have been once sick, the Disposition is still re­duced, though the disease be not proven to be such as could af­fect the Brain. Thus a Disposition was reduced, albeit it was offered to be proven, that the Disponer was mentis compos, February, 1622. Robertson against Fleeming; and that he did his affairs, and sat at Table as at other times: nor is it re­quisit the disease be morbus sonticus, pen. July, 1635. and 7. July, 1629. The alledgeance of judicij minime vaccillant is was also repell'd, and a provision was not sustain'd made to a Child, though the Father had only a Palsie in his side, and liv'd 28. Months, July, 1627. And this is most reasonable, be­cause the soundness of the Judgment being that which is not subjected to the Senses of Witnesses, they cannot properly cog­nosce thereupon, and they would in that case be rather Judges, then Witnesses. For if it were otherwise, Servants who are the only ord [...]nar Witnesses that are present, would have it left arbitrary to them, to make the Disposition valid or not, as they thought fit, and they m [...]ght depone very boldly, because without hazard, since in such guessings as these, they might assume to themselves a very great liberty; and thus though the Law thought it fit, not to put it in the power of the Heretor, to pre­judge his Heir upon Death-bed, by Dispositions, your Lord­ships should by your decision, put it in the power of Servants to [Page 97] prejudge them, by their depositions. And if it were necessar to prove, that their Judgment was disordered by the sickness, then this Law had been absolutely unnecessar, for whatever Disposition is made by any person, whatever condition he be in as to health, yet if he be not sanae mentis, it is still reduceable; and as unsoundness of judgement without sicknesse in that case, were sufficient, so the Law hath made sicknesse without unsoundness of judgment, to be sufficient in this. For, to the end there might be nothing arbitrary in this case, where the greatest of the Subjects (such as are the Nobility) are concerned in their greatest interest, which is the disposition of their old Heretage; The Law hath appointed, that if the per­son be once sick who dispon'd, the proving that sicknesse without any thing els, shall be sufficient for reducing that deed, except it can be proven, that the person who granted the Disposition went thereafter to Kirk and Mercat; to which none go, till they be intirely recovered, and fit for businesse, these being places, wherein sound men are still presumed to be serious, because these places are not fit for recreation, and so not fit for such as are sick, and which are acts that falls under sense; and so may be deponed upon by Witnesses, and are acts exposed to the view of very many: and the Heir cannot be thereby prejudged, by either the want of Witnesses, or by being tyed to the deposition of domestick, packed Wit­nesses; for such only are usually admitted to v [...]sit the Defunct (and so are only the persons who can be Witnesses) by these, who had him so much in their power, as to elicite such Dis­positions from him.

The Defender (my Lord) finding her self straitned by this debate, joyns, to her former Defence, another, which is, that going to Kirk and Mercat are not absolutely necess [...]r qua­lifications of health; but it is sufficient if the Defunct might have gone to either of these, or did equivalent de [...]s, whereby it might have been known that he had recovered his health, [Page 96] [...] [Page 97] [...] [Page 98] for that is the scope and design why the others are condescended upon; and it were unreasonable, that the going down a stair within Burgh, and the buying of an Apple at a Crame, should be a greater sign of health, then the riding of a Journey: so that going to Kirk and Mercat may be supplyed by equivalent acts; And the Lord Coupar did equivalent acts, for evidencing that he was in health, at, and after the granting of the Dis­position, in so far as he rose from, and did go to his Bed at his ordinar times, did come to Table, entertain Strangers, wait upon them without doors to their Horses, sell his Corns, take in his Accounts, and writ long Letters all with his own Hand; in which Letters, he shew a former design he had to make that Disposition. Likeas, former Letters can be pro­duced long prior to his sicknesse, wherein he shew'd his de­sign; whereas your Lordships have by former decisions found, that equipolent acts were sufficient, as in the case betwixt Sym and Grahame, in anno, 1647. Wherein it was found, that the writing of the Disposition of a sheet and a half of Paper, all with the Disponers own hand, was sufficient to sustain the same, and to defend against the reason of Reduction upon death-bed: and in February, 1668. in the action Pargillis against Pargillis, it was found, that the riding on Horse-back, though the Disponer was proven to be sick, and that he was supported upon his Horse, were sufficient qualifications of health; And if the going to Kirk and Mercat were still requisit, the Lieges could never be in tuto when a Disposition is made to them, seing very many men, who are in perfect health, do oft die suddenly, before they have occasion to go to Kirk and Mercat, and when the persons to whom the Dispositions are made, cannot suspect there is any need of their going there.

But though Kirk and Mercat were requisit, yet it can be proven that the Lord Coupar went to both; and albeit he was supported, yet that was only in a piece of the way, which was rough, and at which he used to be supported at other times, [Page 99] when he was in health, and was therein supported now, not because of the sicknesse, but because of the way.

To which it is replyed, 1. That the Law and continual decisions having fixt upon Kirk and Mercat, as indicia Sanitatis, no other acts can be sustain'd as equivalent; for, where the Law requires solemnities, such as these are, solennia non possunt per aequipolentia adimplere; thus earth and stone being re­quired as symbolls in Sasines, three oyesses at Mercat-croces, &c. Acts equipolent to these would not be sustain'd; and the Law having appointed that a Child should be heard cry, to the end Marriage may not be dissolved, though the woman die within year and day, the Law sustains not that the Child was a lively Child, or might have cryed; for, saith that Law, It was fit that some certain sign should be fix'd upon, to prevent the arbitrari­nesse of Witnesses: And seeing it would not be sustain'd to elide the reply of Kirk and Mercat, and the alledgeance of health founded thereupon, that the Defunct was not in health, though he went not to Kirk and Mercat; so the reason of Reduction founded upon sicknesse, because he went to Kirk and Mercat, ought not to be elided, by alledging that the Defender was in health, though he went not to Kirk or Mercat; and if equivalent acts were sustain'd, this Law might be easily eluded, and the effect of it would become altogether arbitrary. 2. The acts condescended on, are not equivalent signes of health, to the going to Kirk and Mercat; 1. Because these acts of going to Kirk and Mercat, are fixt upon by a long tract of decisions, and so are solennia jure recepta; but these other acts are not such as have been found equivalent by any former decision: but on the contrar, acts of more adjusted equipolency then these, have been repelled, when propon'd to take off the reason of Death-bed; and thus in the foresaid decision, February, 1. 1622. It was alledg'd that the Disponer was able to go to Kirk and Mercat, and that he went about his [Page 100] affaires within doors, and came to his own Table, as formerly. And though it was alledg'd upon the penult. June, 1639. that the granter of that Disposition then quarrel'd, and which was made upon most deliberat grounds, was able to mannage his own affaires as formerly, having only a palsie in one arm, which did not affect the judgement. And the 1. July, 1637. It was alledg'd, that the Disponer who had granted a Bond of provision to his own Son, had no disease which could be impedimentum rebus agendis, and that he lived 28. Months thereafter, and went about his affairs, yet all these conde­scensions upon health were repelled, though the time of survi­ving were much longer there then here, the case of the grant­ing of the Disposition much more favourable (and indeed, none can be lesse then this Defenders case) and the persons who did dispone, of a much greater consistency both of health and spirit, then the Lord Couper, who was known to have need­ed little sicknesse, and much lesse importunity and design, was used in this case, to make him do acts both irregular, and unwarrantable.

As to the decision, Sym against Grahame, It is answered, that it was proven there, that the Defunct went upon his own feet to the Apothecaries Shop, and to his Physitians House, which implyes necessarily in Edinburgh, a going thorow the Mercat, whereby the Law is satisfied, and a publick act was done, which might be proven by unsuspect Witnesses. And as to Pargillis case, the Disposition there, was made in favours of a Grand-child, with whose Mother the Grand-father had promis'd the Estate at the contracting of the Marriage, he having been Party-contracter for her, though that promise was not insert in the Contract; likeas, the Disponer went to the ground of the Lands unsupported, and gave the Sasine himself: and albeit he rode to the Mercat, because he was Goutish, which is the only disease that was proven, and [Page 101] which is in the opinion of the Physitians, rather a Pain, then a Disease; yet he went to the Mercat unsupported from his Lodging.

3. All these acts condescended on were done at several times, and might have been very easily done singly, by a person who was sick, and none of them are such acts as require health both of body and mind, as doth the going to Kirk or Mercat, nor did they require the coming abroad to open air, which is the severe tryal of health; and all these acts were transacted intra privatos parietes, and so subject to suggestion, and collusion, the Witnesses being such as were under the power of the Defender, who did elicit the Disposition, and the appearand Heir being absent, and very remote, as is ordinar in such cases: whereas the going to Kirk and Mercat, are acts wherein the appearand Heir may hear a conjunct probation, and wherein though the Witnesses to be led for the Defender, design to prevaricat, yet the fear of being control'd by a mul­titude, would hinder them to adventure upon the deponing an untruth.

4. All the acts condescended on seem to be done ex affectata diligentia, & affectata diligentia pro negligentia habetur, nor can any acts be esteemed equivalent, except they were such, as clearly evidence, that if he had design'd to have gone to Kirk and Mercat, he could have done the same; whereas in this case, when the Defunct design'd to go to Kirk or Mercat unsupported, as Law requires, he could not perform the same, but behoved to be supported as said is, by which it clearly appeares, he did not any acts that were equ [...]polent.

To his actual going abroad to the Kirk or Mercat, I make no answer, since our Law requires his going unsupported, which cannot be alledged in this case; for as going to Kirk and Mercat, is an exception which takes off the reason of Death-bed, so the being supported elides the exception of going to Kirk and [Page 102] Mercat. And so unfavourable have their Reductions alwayes been in our Law, that the Pursuer offering to prove supported, is preferred to the Defender, who offers to prove unsupportable, as was found, 27. July, 1629. albeit regulariter the Defender is preferred to prove his own defence; not needs the Pursuer debate from what cause the supportation proceeded, for it cannot be known to Witnesses upon what account he was supported, and that might have proceeded from infirmity, as well as from the ruggednesse of the way: and so this Law would in its execution and application, return still to be arbitrary, if Witnesses or Judges might guess at the occasion of the supportation. But without debate, the Pursuer con­tends that this priviledge of eliding a Reduction ex capite lecti, being only competent to the going to Kirk and Mercat un­supported; he who is supported, gains not the priviledge, because he fulfills not all the qualities, and it is very well known, that the way is ordinary Calsay, and that the House and Mercat are not distant three pair, and the Lord Coupar used ordinarily to walk there unsupported; So that when he took support, especially at a time when he designed so much to go unsupported, it shewes convincingly, that his infir­mity, though not himself, remained still disobedient to all their designes, and though they could force him to dis­pone, yet they could not force him to be sound; and your Lordships may easily judge, that these who were at so much pains to make this Disposition subsist, were not wanting to use all indeavours for carrying him over this last difficulty, so that this support proceeded not from chance, but from ne­cessity.

Seing then your Lordships have been so rigid observers of the Law, in prejudice of poor Children, and poor Relicts, who were unprovided, I hope you will not prostitute it in favours of a stranger who had formerly gotten all the Defuncts [Page 103] Estate in Jointure: Reward not thus the importunity of Wives, and bryb not avaritious persons to trouble us at a time, when we shall think all time too short, to be imployed in the service of Him, whom we have so much, and so often offended; And take not from us in one decision, the protecti­on of the Law, when our judgments are frail, the quiet of our Souls when we are sick, and the love of our Successors when we are dead.

The Lords reduc'd the Disposition.

For the Countesse of Forth, &c. against E. C.
EIGHTH PLEADING. How far restitutions by way of Justice, are prejudged by Acts of Indempnity.

I Might stand in the next degree of guilt, to those who for­feited the Earl of Bramford, if I thought that his Merit, or your Lordships Loyalty needed, that I should urge much the favour of his case: He was a person who carried the honour of our Nation, as far and as high as could be expected, from the hap­piest Subject in much better times: for after that his Merit, arm'd meerly by his own Valour, had rais'd him to be a General in Sweden, he was chosen General in England, in a War, wherein all his Nation were suspected, and did there, actions worthy of our Praise, and their Wonder. But whilst he had refus'd to draw a Sword against his Country-men, even whilst they were Rebels, they forfeited him, for fighting in a Kingdom, over which they had no jurisdiction, and forfeited him by His Majesties Lawes, and at the pursute of His Majesties Advocat, when he was hazarding his life for His Majesty, by His own command, and in His own presence; and the very day after he had gain'd that Battel for Him, which if prosecuted according to that brave Generals [Page 105] advice, might have secured to Him, that just power, which those Rebels were scruing out of His hands. The Earl of Forth being with His Majesty, restor'd to his own, his Lady and Daughter pursue such as intrometted with his Estate, and insist now against E. C. who for being General to the then Estates, got 40000 pounds out of the Estate of the Earl of Forth, which was a part of that Sum, which was due to his Lordship upon an he­ritable security, by the Earl of Errol and his Cautioners. In which Debate, if I use terms which may seem indiscreet and zealous, I must be paroned, since I shall use none but what are forc'd upon me by that Act of Parliament by which I plead, since E. C. is a person to whom I wish much success in every thing, save this Debat, and to whom my respects are above jealousie.

It is alledged for E. C. that though such as are restor­ed against forfeitures, by way of justice, may by vertue of their restitution, repeat all that is extant of their Estate, yet they cannot repeat what money belonged to them; for money being res fungibilis, and naturally subject to consumption, it passeth from hand to hand, without bearing any impressa, where­by such as intromet with it, may know how it came, and whose it was: Nor doth the nullity of a Title in the first obtainer, in­fer repetition of money from such as derive a right from them, as may be clear'd in many instances, for if money had been payed to one, who obtain'd an unjust sentence from the late Usurpers, yet they would not be liable in repetition, after that sentence were revived and declared null.

If one should serve himself Heir unjustly, and as Heir assign a Sum to one of his Debitors, though his service were thereaf­ter reduc'd, as unjust, yet could not his Assignay be oblieged to re­store what he recovered by vertue of that Assignation. If the Ex­chequer should presently gift an Escheat, though the Escheat, and Horning whereupon it proceeded, were thereafter reduc'd, yet a sum payed by vertue of that Gift, when standing, could not be [Page 106] repeated, and if this Principle were not sustain'd, all Com­merce would be destroyed; and though E. C. his Title be now [...]educ'd, yet it was valid the time of his intromission, which is sufficient to astruct his bona fides: and Lawye [...]s, even in introm [...]ssions with money, which was at fi [...]st [...]obbed, consi­der only Vim illam quae intervenit tempore numerationis; where­as here, though the Est [...]tes did most unwarrantably and rapi­nously forfeit the Earl of Forth, yet his money being brough [...] in to the publick T [...]easure, and confounded with their Ca [...]h, it ceas'd to be his, and became theirs; and therefo [...]e, E. C. being Creditor to them, as he might have taken any Pre­cept justly from them, payable out of their Treasure, So might he have taken P [...]ecepts upon his Estate, which ceas'd to be his: Nor can the Earl of Forth be said to be a loser by E. C. seing the Estates for the time would have brought it in, and converted it to their own use, in which case, Forth would not have go [...] repetition against the persons to whom it were payed.

To these grounds, it is (my Lords) replyed [...]or the Earl of Forth, that there is a difference stated in Law, betw [...]xt restitu­tions by way o [...] Grace, and restitutions by way o [...] Ju [...]t [...]ce; in re­stitutions by way of Grace, the guilt remains though the pu­nishment be remitted, and the person forfeited is restored, not to his Innocence, but to his Estate, and therefore he recovers only what [...]s extant of his Estate. But in rest [...]tutions by way of Justice, the Sentence forfeiting is declar'd never to have been a Sentence, and therefore, it can never be susta [...]n'd as a Warrand to an [...] [...], Sed comparatur juri postliminii & fingitur nunquam [...] [...], & tantum restituit [...] quan [...]um abstuli [...] injus [...] ­ia. And [...], not only what is extant, but all that be­longe [...] [...] [...] there is resto [...]ed. But Sentences fo [...]e [...]t [...]ng may be [...] [...], as B [...]s obse [...]ves, [...], d [...]med. [...] into [...], as though they were [...]njust, y [...]t every p [...]t person was not ob [...]ege [...] to know the injustice o [...] the [...]or [...]eiture: [Page 107] as if a man had been forfeited in a Justice-court for murder under trust, or a Landed-man for theft; against which sentences, though the person forfeited were restored, yet it might seem hard, that such as intrometted by vertue of Warrands or Assig­nations from the Estate, should be forc'd to restore all they re­ceived; but others may be forfeited, as the Earl of Forth was, by vertue of Sentences, which were no sooner pronounced, then they became Treason, by an execrable inversion, not in the Pannel, but in the Pronouncers, and were not only Treason of their own nature, but behoved to be acknowledged treasonable by all such as heard of them, and such sure was that Sentence pronounc'd against the Earl of Forth; which was against the fundamental Laws of this and all Nations, and which is declared by the Act of Parliament restoring him, to have been, at the time it was pronounc'd, an Act of Rebellion, and an invasion upon his Majesties Royal Prerogative.

This being the state of this restitution, It is, my Lords, answer'd to the Defence, that it is defective in the aplication of all its parts; For, that this money was not res fungibilis, appears, because the Law distinguishes all Estates in mobilia (quae sunt fungibilia) immobilia, & nomina debitorum. Nomina debitorum are Bonds due to the Creditor, which are of a middle nature, betwixt movables and immovables, and these fall certainly under restitution by way of Justice, even according to the Defenders own Principles, for they bear the n [...]me and impressa of him to whom they belong, and so the Intrometter is warned to bewar of them: and that this money crav'd here to be repeated was such, is very clear, for it was due upon [...]n heretable Bond to the Earl of Forth, by the Earl of Errol and h [...]s Cautioners, and came never in, nor was confounded with the Publick Treasure; for E. C. got a Precept upon [...]t, before the Publick obtain'd a Sentence for it, and got a W [...]nd for that specifick sum owing by that Bond to the Earl of Forth, and got payment of it from the Earl of Forths De [...]s, [...] [Page 108] Debitors to him: so far did just Heaven allow this hast to be its own punishment.

As to the second member of the Defence, which is found­ed upon his bona fides, to intromet with the sum for payment of a Debt due to him, (he having been General at that time) from an Authority then in being; It is reply'd, that Bona fides in the Intrometter, doth not extinguish and take away the Right of the true Proprietar, nam quod meum est, sine facto meo à me auferri nequit. And Lawyers determine, that to denude a man of his Property, there must be some fact of his, either se obligando, or delinquendo, neither of which can be alledged in this case; and if the Earl of Forth was never de­nuded, then Calendar could have no Right; for, duo non possunt esse domini in solidum unius & ejusdem rei, which maxim holds still in specibus & nominibus debitorum, for though sometimes it may fail in numerat money, the dominion whereof is, for the good of Commerce, sometimes transmitted by simple numeration; yet it never fails in specibus, seu corpori­bus: and that money due by Bond, is not of the nature of pecunia numerata, is clear from l. si certus ff. de legat. 1. And if a Robber take away may Cloak, and give it to a Stranger, yet I would per rei vindicationem get it back, notwithstanding of the Defenders bona fides; but here there was no bona fides, seing E. C. was oblieg'd to know, that the Earl of Forth was injustly forfeited, and that the Act of Parliament, against which there is no disputing, has declar'd it to have been Treason; and if E. C. were pursued for opposing His Majesty at that time, or for concurring to the forfeiting of the Earl of Forth, he could not defend himself otherwayes, then by the Act of Indempnity: Ergo, in the case of restitution of Forths Estate, which is excepted from the Act of Indempnity, That Warrand proceeding upon forfeiture, cannot defend him; for how is it imaginable, that his bona fides, which could not defend him against the losse of his own Estate, shall be able to de­fend [Page 109] him against the restoring of Forths, to which he had aliunde no Right? There is no bona fides, but where it is founded upon a Title, Et ubi non subest Titulus, ibi non est admittenda bona fides; But so it is, that E. C. his Title, viz. The forfeiture of the Earl of Forth, is declar'd by Parliament, never to have been a Title: But E. C. who was a Member of that Parliament which forfeited the Earl of Forth, and General of that Army which defended them, is in the same case, as if two Robbers had taken a Bond from a free Liege, and had given it to one of their own Society, who was at least a spectator; in which it is most certain, that the free Liege so robbed, would recover pay­ment from him who intrometted.

By this unwarrantable intromission with the Earl of Forths money, E. C. became his Debitor, and the supervenient Act of Indempnity could no more defend E. C. against this, then it could against his other Debts. Indempnities are de­sign'd to secure against the Princes Pursutes, who gave them, but not to ruine Innocents, else were these Indempnities, Acts of Injustice, not of Clemency. Si criminaliter caeptum judicium interventu indulgentiae scriptum est, habes tamen ressamen inda­gationem, & potes de fide Scripturae civiliter quaeri, l. 9. C. ad L. Cornel. de fals. Amnesties are but general Remissions, and so cannot be stronger as to all crimes, then a particular Remis­sion is as to one: But so it is, that a particular Remission can only dispense with the Princes Interest; nor doth it cut off the Pursutes of privat persons, as the former Law observes very well; and the Emperor in another Law tells us, Nec in cujusquam in­juriam beneficia tribuere moris nostri est, l. 4. c. de emancip. libero.

From these grounds, your Lordships have an easie and just prospect of the answers which may be made to the instances adduced; for we are not in the case of such as obtain Gifts from the present Exchequer, nor Rights from Heirs once lawfully serv'd: for the jurisdiction whereby these Rights are establish'd, [Page 110] are not funditus taken away, nor were the singular Successors oblieged to know the Sentences, whereupon their Rights were founded, to have been null, as E. C. was in this case; nor can this prejudge Commerce, except among such as are oblieged to know the grounds of their Commerce to have been unwar­rantable, and Rapines and Violence sunt extra Commercium, which is so far from being an absurdity, that it is an advantage; for this may help to stop all Commerce amongst Rebels and Usurpers, and to loose these cords by which they are tyed: and from this, I beg leave to represent to your Lordships, that by this decision you will do more to hinder Rebellion, and to encourage Loyal­ty, then Armies can do; for since no man will hazard hanging and damnation by Rebellion, without he be baited to it, by the certain expectation of a Prey; So, if Rebels find, that they can never be secure of any Prey so obtain'd, they will certainly neither be so eager to have such as are Loyal forfeited, nor so de­sirous to settle upon themselves, Estates so rob'd.

As to that principle, that whatever defect was in the Title here, yet there was none in the numeration of the money, and de­fects in the numeration are only objected against singular Succes­sors; It is answered, that vis est vitium reale, & afficit rem ipsam licet transierit per mille manus. And this original sin insects the whole issue, for the States could not transmit a better Right then they had themselves, nemo potest tribueri alteri plus juris, quam ipse in se habet: and Plin. lib. 3. epist. 9. informs us, that Caecilius Classicus having robb'd the Province which he com­manded, and having payed his Creditors with the sums extort­ed, pecuniae quas creditoribus solverat, sunt revecatae. But though this might be alledged where there remains still some colour­able Title in the Author, and where the singular successour was not oblieged to know the defect, yet in this case it can never be pretended by E. C. whose Right is funditus taken away, and who was at the time the mony was assign'd, or was nume [...] at [Page 111] to him, oblieged to know that defect in his Right, which is now the ground of this restitution.

I shall not trouble your Lordships, with answering those objections, founded upon the Earl of Forths ratifying and homo­logating his own forfeiture, by giving in a Petition, 1647. when he was content to accept back his Heretage, without these sums; for it is known, that Petition was not sign'd by himself, nor did he ever appear before those Usurpers; and what was done by his friends, cannot bind him, especially whilst that Usurpation continu'd, under which he first suffered; nor to the Act, 1662. wherein some Intrometters are declared free, for that Act was only conditional, and upon provision that His Majesty should pay the Earl of Forths Successors 15000 Pounds Sterling, out of the Fines, which condition was never purified, and I wish it had, for that was much better then what is here expected: these grounds are such, upon which none but such as are ready to drown would fasten: But, my Lords, if I needed to prepossesse you with what the Parliament designed in this restitution, I might easily clear, that they design'd these Intrometters should be lyable; for when Duke Hamiltoun and the Earl of Errol were absolv'd as the immediat Debitors, it is very well known, that they were absolv'd upon ex­presse Provision, that they should deliver to the Earl of Forths Successors, such Papers as might prove the int [...]omission of these Defenders, which had been unnecessar if the Intrometters had not been liable, and the reason why these Debitors were absolved had been groundlesse, if Intrometters had not been liable. But to what purpose should the Parliament have re­stor'd Forth, if they had not design'd the Intrometters should be liable? For the Parliament knew, that there was nothing else, which could have been reach'd by this restitution, except these moneys now pursued for, and so their Justice had proved an a [...]y and empty Fanfara, bringing nothing with it but the occasion of certain spending, upon an uncertain ex­pectation: [Page 112] to avoid all which debate, the Parliament have expres­ly ordain'd the first Debitors to produce these Papers, for proving against these Intrometters, who are hereby declared lyable; which words are so expresse, that they preclude all cavil, as well as difficulty.

This being the nature of our Pursute, and these the answers to any pretended difficulties, It is humbly recommended to your Lordships, to give a testimony of your hatred against those violent courses formerly practised, and to teach Posterity what such invasions may expect. I know well, that no man has deserv'd better of His Majesty, then E. C. hath of late; and I hope, that when you have decided against him, he will heartily acquiesce to your Sentence, as a furder proof of his sincere Loyalty, Nec tollitur peccatum, nisi restituatur oblatum. I confesse, that he did not yield to those impressions, till they had overcome the whole Nation, and that nothing but the per­swasion of his being then employed in the service of his Con­science and Countrey, could have with-drawn him from the service of his Prince: But this can plead no further, then that his Prince should pardon these escapes, not that he should re­ward them, especially to the prejudice of His faithful Friends.

The Lords sustain'd the Pursute, and repell'd the Defences.

A Debate in favours of the Earl of Forth, against E. C.
NINTH PLEADING. How far a person unjustly forfeited and restored, may repeat Annual-rents from the Intrometters.

IF I were not (my Lord Chancellor) very confident of the Justice of my own Cause, and of your Lordships Learning, as well as Integrity; I should be somewhat jealous, that the learn'd discourse you have heard, in favours of my L. C. might leave some impression. But, my Lord, I think it im­possible that any, beside those unjust Judges who forfeited the Earl of Forth of his principal Sum, would again forfeit him of his Annual-rents; nor do I imagine, that even those would have done it, if they had not been distemper'd by their own feaverish zeal, and that national fury: so that if your Lordships should folow their example, you should share their guilt, but want their excuse.

It is (my Lord) now alledg'd, that E. C. is not liable in payment of Annual-rent to the Earl of Forths Succes­sours, because Money is of its own nature res sterilis, and in Law bears not naturally Annual-rent; and therefore an Intro­mettor, though predo, though male fidei possessor, is not liable for Annual-rent, for no man is oblieged to improve another mans Money: and by the civil Law, (which was more ready to give Annual-rents then ours) In corporibus ex quibus fructus [Page 114] naturaliter proveniebant malae fidei possessor, was liable in fructus productos, but in corporibus quae non producebant fructus de sua natura, nec predo, nec latro tenebatur in fructus; and though a person who impropriated publick Money was punishable, ratione repetundarum vel ex residuis, and so was there most unfavorable, of all Intrometters, yet he was not liable in usuras; nor by our Law are Annual-rents ever due, sed ex lege, vel ex pacto, neither of which can be alledged in our case; and the Act of Indemp­nity hath made Intrometters with publick Money liable in repe­tition, and though their intromission be most unwarrantable, yet are they not made liable by that Act in Annual-rents. Likeas, though these Moneys due to the Earl of Forth, did at first bear Annual-rent, yet they being once uplifted, became a sum lying in Cash, which E. C. was not oblieg'd to re-imploy upon Annual-rents, and by the Act, 1662. whereby His Majesty was to repay the Earl of Forth, he was only to be repayed of his principal sum, but not of his Annual-rent.

To which, (my Lord) it is answered for the Earl of Forth, That since your Lordships have found E. C. his Title to have been unjust, we must debate now against him tanquam, at least, male fidei possessorem; for the Act of Parliament has declared this forfeiture an invasion upon His Majesties Prerogative, and you have by your Sentence, found it not to be shelter'd un­der the Act of Indempnity.

Let us therefore, in the first place, consider that the Law never design'd to favour oppressors, nor suffer the innocent to be prejudged; it never design'd that men should enrich them­selves by their guilt, and be rewarded for their violence. And since the fear of punishment is scarcely able to restrain that wickedness, to which we are naturally prone; it were absurd to highten our vitiousnesse by rewards; whereas, if malae fidei possessores should not be lyable to repay Annual-rents, they should be enrich'd by their oppression, and should be baired to commit violence, and to maintain themselves in it; for they [Page 115] should be sure lucrari (at least) usuras rei, per vim & injuste ademptae. And therefore, my Lords, though the Law makes a distinction Etiam in malae fidei possessore, inter corpora, ex quibus fructus naturaliter proveniunt, & corpora sterilia? yet, they do not this upon design to favour vitious or violent Intro­metters, but in order to the several wayes of taxing the restorati­on of the person injured; for, where the Bodies unjustly intromet­ed with bear fruits, they ordain the fruits to be restor'd, but where they bear not naturally fruits, the Law doth not ordain the In­trometters to be free, but to be lyable in damnum & interesse, & in omnem causam; this the Law defines to be all the advan­tage could have arisen out of the thing intrometted with: this being an uncontraverted principle, I humbly conceive, E. C. should be lyable to these Annual-rents acclaimed, and that upon these three considerations.

First, This Sum intrometted with by E. C. was a sum bearing Annual-rent; and therefore, Forth being restored by way of Justice, he ought to be put in the same case he was in before the forfeiture: and if the money were now lying unuplifted, Forth would be preferred to E. C. quoad these Annual-rents, which clears, that they were never due to E. C. and if they were not his, he ought to restore them. The forfeiture is declared to be no Warrant, and so, though E. C. were in the same condition as a stranger is, who intrometts with another strangers Money without a Warrant, yet sure he would be lyable in Annual-rents, if he intrometted with a sum bearing Annual-rent; much more then ought he to be lyable, who hath intrometted with a sum, which was unjustly and predoinously intrometted with. For here, E. C. is in the same case, as if a man had broke my house, and had taken away my Bonds with blank Assignations lying beside me, and had uplifted for many years, the Annual-rents of these sums; or if a man had, upon a false token, taken up my moneys which bear Annual-rent; in which cases it is most undenyable, [Page 116] that the vitious intrometter, would be lyable in re-payment of the Annual-rents; and to invert one of the Defenders own instances, it is not imaginable, if any should uplift a sum be­longing to a person lately forfeited, and which did bear Annual-rent, that the Exchequer would not exact Annual-rent from the Intrometter. I might hear urge likewayes, that a Minors money intrometted with, bears Annual-rent by the civil Law and ours; and it is most clear, that pinguius succuritur restituto, per modum justitiae quam minori, as Bossius well observes, tit. de remed, just. num. 3. &. Jason. ad l. Gallus ff. de liber. & postlim. for, as they are equal, in that neither did consent to the intromission, so he who is forfeited for his Countrey, deserveth more favour then a Minor doth; and many things are in Law allowed ob bonum Rei-publicae, but we are not here in the case of corpus sterile, for money bearing Annual-rent is not corpus ex sua natura sterile, but habet fructus ex se facillimè provenientis; usura est [...] seu partus pecuniae, and should rather be restor'd then fructus prediales ought to be, for in these the Intrometter bestow'd his industry, but here Annual-rent doth grow very easily: and that Annual-rent is due, even where it was at first sterilis, is clear from §. quid si l. item veniunt ff. de haered. petit. quid si post venditam haereditatem hic ipse res venient, fructusque earum, sed si forte tales fuerunt, quae vel steriles erant, vel tempore periturae & hae distractae sunt vero pretio, tunc potest petitor eligere ut sibi pretia & usura praestentur. Upon which Law, the Doctors observe, that malae fidei possessor tenetur rem ipsam restituere, si extet, vel pretium & usuras, si non extet: but much more, where money bearing Annual-rent is [...]ntromet­ted with, for there the proper damnum & interesse is Annual-rent, and our Law calls Annual-rent the interest of money: So that though the money had been sterile, yet the vitious Intio­metter would have been lyable in damnum & interesse, and the damnage and interest of money is Annual-rent: nor is this mo­ney of the nature of that money, which the Law makes ste­rilis, [Page 117] for here was an heretable Bond bearing Annual-rent, no­men debitoris, and which in our Law is not accounted inter mo­bilia, and such a Bond pro feudo habetur; nor can it be ever said, that this heretable Security was lawfully loosed, no requi­sition having ever been made.

Another ground I go upon is, That malae fidei possessor; tenetur non solum in fructus perceptos, sed in percipiendos, l. sed & partus ff. quod metus causa; Where the Law determines, that when any thing is vi, vel metu taken, partus ancillarum & fetus peco­rum, & fructus restitui, & omnem causam opportet; nec solum eos qui percepti sunt, verum si plus ego percipere potui & per me­tum impeditus sum hoc quoque praestabit. And when Lawyers consider fructus illos percipiendos qui sunt restituendi à malae fidei possessore, which they call fructus civiles, they define them with Bartolus, ad l. ex diverso ff. de rei vindicat. to be vel quos petitor percepisset, si ei possidere licuisset, vel quos possessor quo alius diligentior non est, percipere potuisset. According to which Characters (worthy of their wonderful Author) these Annual-rents are to be restored upon both accounts; for they might have been uplifted by the Earl of Forth, if this forfeiture and intromission had not interveen'd, and by E. C. had he con­tinued these Sums for after-years, as in the beginning, in the Cautioners hands, or if he had re-imployed them in other hands upon the first termes; and if he, studying either his own gain or convenience, has inverted the primitive use of Forths money, should either his gain or humour prejudge Forth? Incuria sua in rebus alienis nocere non debet. And Copus Parisiensis doth excellently observe, that Sicut ille qui culpa desit possidere pro possessore habetur, ita & ille qui fructus percipere potuit pro perci­piente habetur, Si culpa ua desiit non possidere, what can be more solid, or plain, though E. C. had not employed them upon Land, whereof he has reaped the f [...]uits constantly, since they were so imployed? If a man be violently ejected out of a Miln which was grinding, a Coal-heugh, or Salt pan which [Page 118] was going, he would certainly be restored, not only to his Coal-heughs or Salt-pan, but to all that they might have yielded; much more then ought he to be restored to his Annual-rent, which was a more sure product then these. And whereas it is pretended, that an Intrometter, though wanting a just Title, is not oblieged to improve the money so intrometted with by him, and so cannot be lyable to pay Annual-rents for it; It is to this answered, that though he be not oblieged to improve them, yet he should be lyable, if he altered the natural improve­ment of them: this would not be allowable in bonae fidei pos­sessore, much lesse ought it to be indulged in malae fidei possessore; and though the Intrometter in crimine repetundarum, be not lyable in usuras, yet he is lyable in quadruplum, which much exceeds these, and would also be lyable in usuras, if he intro­metted with publick money bearing Annual-rent, which is our case. And whereas it is pretended, that Annual-rent is in our Law only due, ex Lege, aut ex Pacto; It is answered, that Annual-rent is here due, & ex Lege, & ex pacto; ex Lege, because in restitutions ex Justitia, the party ought to be restored in inte­grum, cum omni causa, in which Annual-rent is included: & ex Pacto, because C. hath given his Bond to secure the Debitors, as to all damnage or interest they could sustain.

The third Principle I fix upon is, That E. C. gave his Bond to relieve the Earl of Kinnoul and Errols Cautioners, of all damnage and interest they could sustain by paying these mo­neys to him; and therefore, seing they are now absolved by the Parliament, upon express provision, that they should make out the intromission of such to whom they payed the money; it follows by an infallible inference, that they are lyable to the Earl of Forth for what damnage he sustain'd, and he by this Sentence, is surrogat in their vice; and E. C. having given this Bond, should have alwayes lookt upon this money, as that which he was moe wayes then one tyed to improve, and should have known, that this Talent was not to have been la [...]d up.

[Page 119] I will not burden your Lordships, with satisfying the clamours rais'd against the rigidity of this Pursute. It is not craved, that the King would bestow E. C. his Estate upon Forth, but that Forth should be restored to his own, E. C. his Life and Fortune being at His Majesties disposal, as excepted from the Act of In­dempnity: The Ransom craved, is only to restore the Earl of Forths Estate. We desire not E. C. should be made poor by his crime, and it were unwarrantable to desire that he should be enriched by it, especially when his being enrich'd will neces­sarily starve them, who had never any requital for their Loyalty, save this Act of Justice. Forths Lady and Family have been forced to borrow money at dear rates (as all starving people do) to supply their want of these Annual-rents, and if they be not restor'd to these, they are still to be Beggars, for the Principal will not pay their Debts; and so they must wander the indi­gent instances of their Princes unkindnesse, and Countries in­justice, whilst their Oppressors do warmly possesse their Estates, as the reward of their opposition to His Majesty.

Not decided in jure.

For Bartholomew Parkman, against Cap­tain Allan.
TENTH PLEADING. Whether Ships taken after they have carryed Contraband-goods, can be declared Prize.

MY Client is, I confesse, (my Lords) taken as an enemy to His Majesty in this War, but it is by a Privateer,, who makes all rich Ships so; his Ship is adjudg'd Prize, but it is by the sentence of a Judge, who having the tenth of all Ships as his share, was too much in­terested to release her when she was taken: but our Law being jealous of that Court upon that account, has allow'd a remedy by your justice, against what injustice they could commit; and when we are concern'd with strangers, and to let Forreigners know what Justice our Country dispenses, it was fit that they should have entrusted the decision to your illustrious Bench, whose Sentences may convince, if not satisfie, even such as are loosers by them.

The Sentence adjudging that Ship Prize, is by the Admiral, founded upon these two grounds, first, that His Maj [...]sty has, by His Declaration ordain'd, that all Ships which were sail'd by his M [...]jesties enemies the Hollanders, should be seiz'd upon as Prizes, and this Ship was sail'd by Hollanders, at least [Page 121] three of them were of that Nation. The second ground was, that he carry'd Contraband-goods for supplying His Majesties enemies, viz Stock-fish, and Tar; and though he was not taken with these Contraband-goods, yet he was taken with that Salt which was the return of these, having loaded in Salt as the product of these Goods. My Client has rais'd a Re­duction of this Decreet, as injust, and reclaimes against it upon these reasons.

As to the first reason of Adjudication, bearing, that the Ship was sail'd with three Hollanders, he alledges that the Swede being an Allye, was not oblieg'd to take notice of the King of Eng­lands Proclamation of War, which is indeed Lex Belli, quo­ad his own Subjects, and may warrand them in what they do against the Hollanders, who are declar'd enemies; but no Lawes made by him can tye Allyes, furder then is consented to by express Treaties amongst them: and it were injust, that because the King of Britain designs to make War with Holland, that therefore it shall not be free for Swede to use any Hollanders in their service, especially since without Hollanders, it is impossible to them to manage their Trade; and were it not injust, that all the Swedes, Spainiards or others, who had employed the Hollanders before the War to sail their Ships, and had rely'd upon their service, should be forced immedi­atly, upon declaring a War, to lay aside all Trade; and if it were injust for any in Britain to take prisoner a Hollander, who serv'd a Swede in England, much more injust it is to take their Ship and themselves as Prize, because they were serv'd at Sea by Hollanders: Nor is it advantageous for the interest of Eng­land, that this glosse should be put upon the Proclamation, since it is Englands interest, that the Hollanders should all desert their Countrey, and serve abroad amongst Strangers; whereas, by this glosse, they would be forc'd to stay at home, since none else could employ them; and this will extreamly gratifie Holland, who commands under severe pains, by [Page 120] [...] [Page 121] [...] [Page 122] publick Placats, that none of their Subjects, especially Sea-men, should serve abroad.

It is also humbly represented to your Lordships, that some of the three who are Hollanders are only young Boyes, who have no constant domicile, but serve where they can have employ­ment, and Servants are, by the Laws of Oleroon (which are now the Lex Rhodia of Europ) accounted inhabitants of that place where they serve; and we consider not domicilium originis in servis, for they in all senses, and amongst all Nations, follow the domicile of their Master, else the power of Masters would be much impair'd, and Commerce much entangled. Likeas, it is fully proven, that these men were not employed upon design by my Client, but were hired by him upon the death of such as serv'd him when he was in Denmark and Hol­land, which necessity is sufficient to defend Subjects, and much more Allies; nor is it imaginable that a Swede, who is not concern'd in the War, should, if his men die in Holland or Denmark, lye idle there and loss his Trade, and stay from his Countrey, because he cannot employ his Majesties enemies, nor would England allow this, if they were Allies, and the Swedes only concern'd in the War: and though in a former case, your Lordships adjudg'd a Ship called the Castle of Riga, because sail'd by Hollanders, yet the greatest part of the Sailers were Hollanders in that case, who might, because of their number, have commanded the Ship and taken her to Holland, or have with her fought against His Majesties Ships, and have made them Prize, when they were secure. Nor doth it follow, that because His Majesty in His Treaty with Spain, has allow'd the Flandrians a liberty to sail with Hollanders, that therefore it must be regularly lawfull to sail with Hollanders; for the design of that was not so much to allow the Flandrians to sail with Hollanders, as to secure them against seizures, upon the presumption of their speaking Dutch, because of the vicinity of their Language, sayes the Treaty; and if this had not been [Page 123] granted to the Flandrians, all their ships might have been brought in, upon pretext that they were sail'd with Hol­landers.

The second reason of Reduction, upon which my Client craves to rescind that pretended Adjudication, is, that though he had carryed in Stock-fish and Tar to His Majesties enemies, yet except he had been taken when he was actually carrying these Contraband-goods, his being taken with the return of these Goods was no sufficient ground of seizure, which I shall endeavour to evince by many reasons; First, That by no Law, Stock-fish nor Tar can be call'd Contraband, seing Contraband-goods are only such as are determined to be such by an express Treaty, or by the general custom of Nations; neither are Con­traband-goods still the same everywhere, but are by private Trea­ties with Allyes, establish'd to be such, in respect of such termes as are agreed upon betwixt them; and generally these are only counted Contraband-goods quoad Allyes, which have no use in the place to which they are carryed, but for carrying on, and maintaining the War; and seing the reason why Contraband-goods are prohibited, is only that Allies may not assist in the War against the Confedetats, it is therefore very consonant to reason, that the Law should only interpret those Goods to be Contraband, which serve p [...]operly, and immediatly for maintaining the War, and Tar cannot be call'd such, seing it serves more for Peace, then War; and though an Naval War cannot be carryed on without Tar, yet Tar cannot be said to be Contraband, no more then Cloath, Stuffs, Linning, or such things, can be call'd Contraband, seing a War cannot be carry'd on without these: and if we look to the Treaty be­twixt the Crowns of Britain and Sweden, we will find, that Tar is not enumerat in that Article, wherein it is declared what Goods can be accounted Contraband, and in such special Articles as these, inclusio unius est exclusio alterius, especially where it appears to be designed by both parties, that their [Page 124] Subjects should be inform'd, what should be lookt upon as Con­traband; and it was very fit that their Subjects should have been inform'd expresly, else that Treaty could but prove a snare; and if we look narrowly unto the nature of the parti­culars there enumerat, we will find, that there is nothing there expressed to be Contraband, but what is only and immediatly usefull for the War; and there is no general in all that Article, but only Instrumenta Bellica, which cannot be extended to Tar, whithout an evident wresting of the word.

2. Though by an expresse Article, the carrying in Victuals to enemies be discharg'd as Contraband-goods, and that under the word of Comeatus, yet Victual is only declared to be Con­traband, in case it be carry'd to any of the enemies Cities when they are besieg'd, Si Civitas sit obsessa (saith Grotius) which restriction was very reasonable, for then the carrying in that Victual was the relieving and the maintaining of an enemies Town against the faith of the League; for there, he who doth feed, doth defend: and though Pesh. relates, that the Dantzickers did confiscat, in anno, 1458. sixteen sail of Lubeckers for carrying Victual to the enemies, yet he forgets to tell whether the ene­mies were besieg'd, but he expresly relates, that there, the carry­ing in Victual was expresly prohibited. Neither was there any such considerable quantity of these Stock-fish carryed in here, as might shew any design of assisting the Hollanders by Victuals, seing it was carryed in a very small quantity, and might have been necessar for the Pursuers own Company; and if they had design'd to have carryed these as Commodities, they had carry'd them in greater abundance; and Tar is the product of Sweden, and so Commerce in it is necessar for them.

And whereas it is contended, that the Ship had formerly carried enemies Goods, and consequently had transgressed that Article of the Treaty, whereby bona hostiam tuto advehere non licet; It is answered, that if they had been taken carrying [Page 125] these enemies Goods, the Goods could have been confis­cat, but not the Ship; it being very clear by the Law of all Nations, that it is lawfull even for Allies to fraught their Ships to strangers, in order to civil Commerce, and that to hinder this liberty, is a breach of the Law of Nations, as is very clear by the Constitutions of several Nations, printed lately at Venice, where amongst other Articles, it is deter­mined, Si & navis & merces hostium sint, fieri ea capien­tium, si vero navis sit pacem colentium merces autem hostium (which is our case) cogi posse ab his qui bellum gerant navem ut merces eas in aliquem portum deferat, qui sit suarum par­tium ita tamen ut vecturae pretium nautae solvat. Since then by the Law of Nations, the Skipper behoved to have had this fraught pay'd, though he had been taken carrying ene­mies Goods, it were against all sense and reason, that his Ship could have been confiscat for carrying them: and Camden in the year, 1597. tells us, that Pole did, by their Am­bassador complain, that the Law of Nations was violat, in that the English had in their War with Spain, challenged their Natives for carrying their Goods to Spain. And Serviens re­lates a decision, 12. December, 1592. wherein some Ham­burgers were declared free, though they were taken carrying Corns and other Commodities to Spain, and because they were Allies; for the Parliament of Paris thought, that Allies deserved better then others.

If we consider the Treaty with Sweden we will find, that Ships carrying Contraband-goods are only to be seiz'd on, si deprehendantur, which (like all words in Treaties amongst Princes) must be taken in augustiori sensu; nor suits it with the generosity of Kings to take little airy advantages of one another, and to debate like pedantick Formulists, who ensnare one another, in thin cob-webs, as spiders do flees: but in no sense can these words si deprehendantur, be extended to the Ships being taken in any former Voyage, for els they had been [Page 126] superfluous and impertinent, since no Ship can be adjudg'd, except she be taken in some voyage: the genuine interpretation of words is, interpretari secundum subjectam materiam; and therefore, since these words are insert in a Treaty, wherein His Majesty is to indulge favours to the Swedes, they must be in reason so interpret, as that they may be a favour; and there is no favour indulg'd here, if these words be not taxative, and if they declare not any Ship free, which is not seiz'd carry­ing Contraband the time of the seizure.

By our Law it has been very wisely provided, that we should use strangers in our Admiral Court, as they use us in their Countrey, Act 24. Ia. 1. Par. 9. And it is offered to be proven, by the Law of Sweden, Tar is not esteem'd Contraband, nor can Ships be declared Prize, for what they carryed in a former Voyage; and since our Natives would complain of such usage in Sweden, let them not meet with it in Scotland; which is very suitable to that excellent Title, in the Digests, Quod quisque juris in alterum statuerit, ut ipse eodem jure utatur: by the Law also of England, (as Judge Jenkins reports, in a return to your Lordships Commission) no Ship is confiscated upon this ground.

Be pleased (My Lords) to consider, what great prejudices would arise to Trade, if Ships might be seiz'd, upon pretext that they carryed Contraband in a former Voyage; for by that allowance, all Ships might be seiz'd upon, since this pretext might lye against all, and every poor Merchant might be left a prey to the ravenous Privateers, who might force them to ransome themselves from the very hazard of a seizure: in which case, whatever were the event of the confiscation, yet still their time and expense would be lost, and their Secrets and Papers would be made open; which is so great a prejudice to Merchants, that by the Rhodian Law, Secreta [...], non licebat introspicere, & introspicientibus ultimum supplicum irrogabatur.

[Page 127] It was likewise very fit, that the Swede, and all Princes should tye the Privateers to a probation that fell under sense, and such is the having Contraband-goods presently aboard, & ubi constare potest de corpore delicti, and not lay poor Merchants open to the hazard of the testimonies of two rogues, who being tempted by malice or avarice, might depone falsly, that the Ship carryed Contraband-goods formerly: in which they might the freelier transgresse, because they could not be con­trol'd; whereas no such falshood is to be fear'd, if only actual carrying can confiscat a Ship; since there, the existence of the Goods precludes all possibility of error or falshood. Were it not also very absurd, to seize a Ship which possibly carryed Contraband in a former Voyage, and thereby ruine a great many Merchants who were the present fraughters of her, and who neither did nor could know what she had carryed formerly? and yet, she being seiz'd, their Voyage would be broke, and their Fortunes ruined. Or, if another Skipper or Owners had bought her from the first offender, were it not injust to seize the Ship? and yet the Ship were Prize, if this opinion could take place; this were to pnnish ignorance, and Commerce re­quires more latitude, then such Principles can allow.

It is, I preceive, urg'd for this opinion, that the Com­missions granted now, and of old, bear expresly a power to take Ships which have carryed enemies Goods; and there is a Commission produced, in Anno, 1628. of this tennor, to­gether with two decisions of our Admiralty to the same effect, neither of which are concluding; for Strangers and Allyes are not obliegd to take notice of privat Commissions, which are not leges belli promulg [...]ae; these may warrand against damnage and interest, but not against restitution; and as to the decisions, they are founded upon other grounds also. It is also urged, that the carrying Contraband being a crime against the Prince or State who make the War, there is jus quaesitum to them, by the very commission of the crime, though the Defender [Page 128] be not then actually deprehended; as we see in other crimes, which are punishable, though the offenders be not actually deprehended: But to this it is answered, that Princes may otherwayes use their own Subjects, then they should be allowed to use Strangers; the having offended is sufficient in the one case, but actually offending is necessary in the other, for els our King might at any time, even after the War, seize upon one of these Ships, because (forsooth) there was jus once perfectè quaesitum to him by the very offence, which is too absurd a consequence to be allowed: and albeit all that was done in the course of the War, be ordinarily caveated by the subsequent Treaties, as to the Nations who were ingaged in the War, yet Allies being secured by no such Treaties, their Subjects might still be lyable to seizures, and hazards of this nature, which were both injust and inconvenient.

Consider that there is a difference betwixt such Allies, as are tyed in a League Offensive and Defensive, and such as only enter in a Treaty for their own advantage, as Swede has now done: the first are oblieged to assist, and therefore, all cor­respondence in them were a breach, but in the other it is not so, and in them that Maxim holds, that cuilibet licet uti jure suo, modo hoc non fecerit principaliter in aemulationem alterius: though all this traffique that is alledg'd were true, yet it clearly appears, that the great design of my Client, was not to serve the Dutch, but to maintain their own poor families, in a way which the severest Lawyers could justifie. Remember how little Swede is oblieged to Holland, who kept them lately from conquering Denmark; So that it is improbable they would have serv'd them, upon design to promote their War. Remember how much our Countrey-men were honoured lately by their great King, who preferr'd two of them to be Ge­nerals, and thirty two to be Collonels at once in his Armies: And I must likewise remember your Lordships, that the pro­bation in such cases is very suspicious; for there, a mans whole [Page 129] Estate depends upon two mean fellows, and such two, as are under the impressions of their enemies, and who may expect at least their liberty as a bribe, and that their depositions come to us by an Interpreter; so that though he did not mistake them (as he may) yet the trust resolves at most in his single assertion, who is but one man, and who by being the ordinary Servant of that Court, is much to be suspected; and therefore, your Lordships may call for the Witnesses, declare their per­sons free, and thereafter examine them.

Let us not be more cruel then the Sea, and more merci­lesse then Storms, and after that these poor men have escaped those, it were inhumane that they should shipwrack upon our Laws, which were to them, like hid rocks, upon which there stood no known Beacon. Figure to your selves (my Lords) how these poor mens longing Wives, send dayly their languishing looks into the Ocean, as they can, to find them, or how the Creditors, who advanced neces­sars for their aliment, expect payment from their return; and how it must prevent the starving of their poor Babes, whose craving apetites and cryes, do probably now astonish their indigent Mothers; it is those you punish, and not only our appealers: and how would we use enemies, who had murdered our Country-men, when we thus use our Allies. We alledge, that this is (my Lords) a case where­in Justice will allow some respect of persons; and since po­litick advantages have given their first form and being to this Law and Proclamation, whereupon this seizure is said to be founded, consider, I intreat you, how inconvenient it were to disobliege by a decision, the King of Sewden, whom your Royal Master, who understands best the ad­vantages of this Crown, has taken pains to obliege by a Treaty, and how hard were it, if upon your decision, that Prince should be forced to grant Letters of Marque, or lay [Page 130] an Arrest upon all the Vessels of our Nation trading there, by which the innocent might be opprest for the guilty, many might losse for the gain of few, and the present Unity of the two Crowns might be dissolved, by a sentence of your Court.

The Lords jointly sustain'd the Adjudication, notwithstand­ing of this Debate.

For the Burghs of Regality, against the Burghs-Royal.
ELEVENTH PLEADING. Whether it be free to all the Lieges to Trade with Forreigners, or if this Priviledge be only competent to Burghs-Royal.

May it please your Grace,

SInce freedom, is one of the greatest blessings, and plea­sures of mankind, those Laws which design to abridge or lessen it, must be very unsupportable, and unfavour­able; except they bring other advantages, which in ex­change of this bondage, can either convince our reason, or gratifie our interest. But if we consider the Laws here founded on, whereby it is pretended, that none but the Indwellers of Burghs-royal can trade with Forreigners, we will find, that these Laws are so far from being advantagious, either to the Publick, or to privat persons, that they are a great bondage on the one, and a great impediment to the other. The Pur­suers who desire to lessen the freedom of Trade, are the sixth part only of Scotland, who desire to retrench the priviledges of the other five parts, and the priviledge wherein they desire to retrench us, is our freedom, the very words of the priviledge they crave are, that we should be declared unfree-men, and un­free-men imports, Slaves, in all Languages; and in reality, not [Page 132] to have liberty to export our own Commodities, is to be Slaves to such as may stop us, for in so far as they may stop us, they are our Masters.

That they are destructive to every mans interest, appears from the restraint they lay upon his Inclinations, and upon his Property; as to his Inclinations, they are very much re­strained, in so far as though any of the Lieges did never so ardently desire to trade, and though his breeding, and the situation of the place where he liv'd, did favour extreamly therein his Inclinations, yet, except he live constantly in a Burgh-royal, he cannot trade. They lay likewise a restraint upon his Property, because though the situation of his Estate be very advantagious for Trading, and his Estate consist in money, yet can he not imploy that money in Trade, which is the natural use of it; and thus in effect, these acts tend to enslave both our Inclinations and our Estates.

Nor do they lesse prejudge the publick Interest, as will clearly appear by these considerations; 1. By this priviledge, five parts of six in the Kingdom, are debarr'd from Trad­ing; whereas it is a known Maxim in all Nations, that the moe Traders, the richer allwayes is the Kingdom; and upon this consideration, the English and French, have invited all their Gentry to Trade, by declaring, that Merchandising shall be no derogation from their Nobility and Honour. 2. The more money be imployed upon Trade, and the lesse upon Annual-rent, the Kingdom is alwayes the richer, for though privat parties may gain by Annual-rent, yet the publick Stock of the Nation is not thereby improved, the one half gains there from another, but neither from Forreigners; and if all except Burgesses be debarr'd from Trade, then the money of five parts of the Nation must lye idle, or els must be lent to Merchants, which is not ordinar; and to force us to lend, were unjust. 3. By this, the places in Scotland fittest for Trading, are kept bound up from using the natural advantages [Page 133] of their situation, to the great prejudice, of the Nation, as we see in many instances, and particularly in Lews and Bur­roughstounesse, to keep which from being Burghs, the Burghs have spent a great deal of money. 4. This has ruin'd many little Towns, who because they were debarr'd from all pri­viledge of Trading, were forc'd to get themselves erected in Burghs-royal, and after that they were erected, were forc'd to be at the expenses of keeping Prisons, being Magistrats, sending Commissioners to Parliaments, making publick Enter­tainments, and so did ruine themselves without any advantage to the Countrey: and by this, the number of Burroughs are so far encreased, that it is a shame to see such mean creatures as some of them, sent to our Conventions and Parliaments, who, notwithstanding they want both Fortunes and Breeding, yet must sit as the great Legislators of the Kingdom, and must have a decisive voice, in what concerns the Lives, Fortunes, and Honour of the greatest Peers in it. I design not by this to disparage all Burroughs, for most are represented by most qualified persons; but to tax these Laws, which have forc'd many little Towns, either to send none, or to send such as are unfit. 5. All the Countrey is ill serv'd, for in some Shires, there are but very mean Burghs, and in these Burghs, Merchants yet meaner, and if these want Credit, to buy and carry out our native Commodities, they must lye upon the Owners hands, and the Countrey wanting necessar returns, such as Salt, Iron and Timber, must buy from very remote places. 6. If two or three Merchants in better Towns conspire, not to buy or sell, but at rates agreed upon amongst themselves, then the poor Countrey must be at their devotion, and this were to grant Monopolies, not only in one place, but in every Shire, not only as to superfluous Commodities, (as use is, when Monopolies are granted) but as to all, and even the most necessar Commodities; after this, no man shall dare buy a Skin, Wine or Sugar, but a Burgesse, and which is yet harder, [Page 134] this will furnish a pretext to Burghs to oppresse all such as they envy, under the notion of unfree Traders. 7. His Majesties Customes will be thereby much impair'd, for the fewer Traders be, the lesse will be both exported, and imported, and whatever lessens export and import, lessens doubly His Majesties Customs, of the which those are two hands. 8. Other Nations, who under­stand Trade in its perfection, such as Holland, do allow all their Subjects to Trade without difference, and it is a Maxim amongst them, That many hands and many purses, make a rich Trade. And it imports not to say, that their Common-wealth differs from ours in its Constitutions, and that they have vent for their Commodities all over Europe, whereas our vent is no larger then our consumption; for whatever difference be in our fundamental Constitutions, yet in the matter of Trade, they are still the universal Standart: and sure, it is the advan­tage of our Countrey, even in order to our consumption, to have the priviledge of Trade, in necessar Commodities ex­tended to all, for the moe importers be, we will get our ne­cessar Commodities at a lower rate, and the moe exporters be, our Corns, Fishes, &c. will give the greater rates, and those are the two great advantages of a Kingdom.

I confesse (may it please your Grace) that the erecting of Societies, as to some Trades, and at sometimes, is necessar, but the ordinar rule extends there, no furder, then that Trad­ing to remote Nations, and in rich Commodities, should at first have some priviledges as to their erections, for else, privat Stocks would not be able to compasse it; but even as to these, when the Trade is once secured, and becomes easie, and ma­nagable, then these priviledges cease, with the cause from which they had their origine: and therefore it is, that albeit Trade with Forreigners seem'd at first above the reach of our first Traders, when to sail to Spain, seem'd as har'd as an East-India Voyage now doth, then Trade needed some priviledges; yet now, when experience and encrease of money has lessened [Page 135] those difficulties, I conceive the priviledges should expire. It is known, that the Bishop of Glasgow gave only his Burgh then liberty to Trade into the Shire of Argyl, and that the Burgh of Edinburgh had a special priviledge of old, to Trade in the Isles: but that now they need these, will not be debated even by themselves.

I confesse, that all Incorporations in a Common-wealth ought to have different designs, and different priviledges suitable to these designs, as is pretended; but it can by no clear inference be deduced from this, that the sole liberty of Trading in all Commodities with Forreigners, should be­long to Burghs, but only that they should have some Staple-goods, wherein they only may Trade. And we are content to allow them, the exporting and importing of what is super­fluous, such as Wine, Silks, Spyces, &c. let all, even Countrey-men, have the export and import of what is necessar for their own station and employments, let them export Corns, Cattel, &c. since the having these Commodities signifies nothing without power to sell them, and the liberty of im­porting Timber, Iron Salt, and these other Commodities, without which they cannot live in their own station. And whereas it is pretended, that they are content we should ex­port the natural product of our own Countrey, providing we bring home money only for them, it is conceived, that this concession destroyes what is conceded, for if unfree-men can only bring home money, then Free-men and Burgesses may easily undersell them, for few abroad buy them with ready money, and money is the dearest of all returns; so that these who barter Commodities for what they export, may sell much sooner, and cheaper, if they bring home nothing in return of what they export; for export by it self, without import, oc­casions great losse, and the advantages of Merchandizing is ordinarily in the returns.

Whereas it is contended, that the lesse diffuse Trade be, [Page 136] it prospers so much the better, for it may be easier govern'd according to the just rules. And our old Law appointed wisely, that none but Worshipfull men, and men of considerable Stocks should Trade abroad, that thereby poor people, by running over seas, might not by their necessity of selling, or want of skill, low the prices of what they exported, and buy unskillfully at high rates what they imported; and that to defend Trade against this dishonour and prejudices, Guildries were appointed in Burghs to supervise the conduct of Merchants, and restrain abuses, which Burghs of Regality and Barrony wanted, and so were lyable to many escapes.

To this it is answered, that though at first, these rules were necessary, yet now when Trade is raised to some con­sistency, this necessity fails with its occasions; for there are no where poorer Traders, then within Burghs, to which ordinarily the meanest and poorest amongst the people retire, when they cannot live elsewhere, and when they are once setled there, they, because of the easie conveniences of Trading, do indiscreetly run upon it; whereas, none who live either in Burgh of Regality, Barrony, or in the Countrey, will be tempted to adventure upon Trade, except they have consider­able Stocks, and be secure of a full vent. And without de­bating what was the design of our Legislators, in erecting Guildries, yet we now find by experience (which is a much surer guide then project) that Guildries have conduced so little to advance Trade, that they tend rather to secure the Monopoly, which they at first procur'd, and to establish by mutual compacts, those exorbitant prices for Commodities, which are now exacted: And if Deaconries amongst Malt-men and others, were discharged, to prevent combinations, I see not why Guildries, which are but Deaconries amongst Merchants, should not be discharged for the same reason.

But (may it please your Grace) the great refuge against these convincing reasons, is, that these might have been urg'd, [Page 137] in jure constituendo, but not in jure constituto, for reasoning ends, where Law begins, & omnium quae fecerunt majores nostri, non est reddenda ratio. But this may, I humbly con­ceive, be easily answered, if we consider, 1. That Laws are mortal like their makers, and they who would bind up their reason to a constant adhering to what was once made a Statute, behov'd to renounce that reason by which they should be go­vern'd, and leave off to be reasonable men, that they might be Lawyers: and therefore it is, that because Legislators might take an untrue prospect of future events, Lawyers have determin'd, that where Laws never grew unto observance, they did really never become Laws, the being once observed is one of the greatest essentials of a Law, Statuta usu non recepta, nec observata, pro non factis reputantur, Voet. de statut. cap. 2. Sect. 12. arg. l. 1. §. 9. C. cad. toll. & alex. consil. 6. vol. 1. And if the not observance of Laws for ten years after they were made, is in the opinion of Lawyers, sufficient to repudiat them, much more ought they to be rejected, after they have for many hundreds of years, languished in a constant contempt; for els they are but like these idols, of which the Scripture tells us, that they had eyes, and saw not, ears and heard not, and feet but could not walk: and if we consider these Laws, we will find, that even Authority of Parliament which can do all things in Scotland, has not been able to maintain them in those; for these Statutes oftimes begin, That for asmuch, as there had been diverse Acts of Parliament, made in favours of the Royal-Burghs, ordaining they should have the only benefit of sailing abroad, &c. Yet these Laws have not been in observance, there­fore, &c. as is very clear by the narrative of the 152. Act, 12. Parl. I. 6. and why should the Act have been renewed so oft, if the former had been observed? And if in spight of all these Acts, the Subjects could never be brought to compliance with them, why should we offer so much violence to our Native Countrey, as to force upon them that from which they have so much [Page 138] aversion? If Acts which have been strengthened by obedience and observation, may be repell'd bydesuetude, and a contrary custome, how much more may desuetude overcome Acts which are not yet arrived at their due strength, and perfection? 2. Though these Acts had been once in observance, yet they are now antiquated by desuetude and non-observance: that de­suetude may antiquat and abrogat Laws, is very clear from reading our Acts of Parliament, of which the full half are in desuetude, and are only considered now by us as matters of Antiquity, as Roman Medulls, or old Histories: and par­ticularly, can the Burghs-royal deny, but most of these Acts limiting their Trade and Government, are gone in desuetude, as that Officers within Burgh should not be continued from year to year, I. 3. Par. 5. Act 29. They should not sail in winter, nor oftner then twice in the year to Flanders, I. 5. Par. 4. Act 30. Nor should they sail, except they be worship­full men, and have at least three serplaiths of Wool, or half a Last of Goods, I. 3. Par. 2. Act. 13. I. 2. Par. 14. Act. 168. Frustra opem Legis implorant, qui in Legem peccant: and it were injust, that they should obliege others to obey, what they will not submit to. And that the Acts whereupon the priviledges now craved, are founded, are gone in desuetude, appears very convincingly, from the constant practice of all the corners in the Nation, not by single, or clandestine Acts, but openly, upon all occasions, and in all places, and ages, even under the neighbouring observation of whole fleeces, and of all their succeeding serieses of Magistrats: Have not Musselburgh, and Borroughstounnesse near Edinburgh, Hamiltoun near Glasgow, the greatest Burghs of this Kingdom, exercised this freedom which is now contraverted? And though they made frequent applications to your Lordships, yet till now was their never a Decreet in foro in their favours, and Decreets in a [...]sence, are rather founded upon the omissions of the De­fender, then the justice of the Pursute. So that it appears [Page 139] clearly, that the Magistrats have been ashamed to crave, the Judges unwilling to allow, and the people stiffly refractory from submitting to the priviledges here crav'd to be de­clared.

To this it is replyed for these Burghs-royal, that desuetude cannot abbrogat Laws under Monarchies, though it could under Common-wealths, Nec potest tacitus populi consensus abrogare, quod expressus populi consensus non introduxit, l. 32. ff. de. leg. Nam cum ipsae Leges nulla ratione nos teneant quam quod judicio populi sint receptae, merito & ea quae populus sine ullo scripto probavit, tenebunt omnes. 2. Though desuetude might abrogat such Laws as respect only privat Rights, yet the people by breaking penall Statutes, cannot by repeated transgression, secure themselves against Laws made for restrain­ing their insolencies; else by frequent Usury, or attending Conventicles, these delicts might passe in desuetude, and by the Acts founded upon, the half of the offenders Goods are declared to belong to His Majesty, and these Laws are in effect penal Statutes. 3. Where Laws may run in desuetude, it is required, that the desuetude or contrary consuetude, be founded upon clear and open deeds, and not upon clandestine or precarious Acts, as in this case, wherein all the Trade with Forreigners, to which these Burghs-royal or of Barrony can pretend, was either carry'd on under the name of free Burgesses, or was tollerated by the neighbouring Burghs-royal. 4. It is requisit, that the consuetude which is oppos'd to Law, be judicio contradictorio vallata, which cannot be alleadg'd in this case, where not only no Decreet can be instanced, finding these Laws to be abrogated, but where there are Decreets produced conform thereto.

To the first of which it is answered, that though those Laws seem to respect a Common-wealth, yet it is generally received now, that a contrary desuetude may abrogat even Laws in­troduced by Monarchs, and that the taciturnity or connivance [Page 140] of the Prince, is equivalent to a consent. Thus Perez, tit. Quae sit long. consuet. sunt qui scientiam principis desiderant, quia in illum omnis potestas condendi juris translata, ego tamen existimo sufficere, ne Princeps contradicat: and for this he cites, c. 1. de constitut. de 6. where a consuetude is sustained to abrogat Law, though the Pope (who is a soveraign Prince in his own Dominions) did not expresly allow it, dummodo sit rationabilis, & legittime praescripta; and with us, do not our old Laws die out by desuetude? and do not new consuetudes dayly spring up, without any other warrand, then meer reason, and prescrip­tion: but in our case, His Majes [...]y has so far allowed this custom, and has so far contributed with it to the abrogation of these Laws, that he has under his own Royal Hand, granted many Signatures in favours of Burghs of Regality and Barrony, allowing them to Trade with Forreigners, and extending their priviledges as far as those of Burghs-royal; which Signatures are pass'd in His Exchequer, and authorized with His Seal, which states this consuetude in a very different case from con­suetudes which may abrogat penal Statutes, or such publick Laws as are made against Conventicles; the one His Majesty opposes, in the other He concurrs. And this likewise answers that other objection, founded upon the clandestinnesse of these Acts, for what Act can be more publick, then these which passe His Majesties hand, the publick Judicatures, and com­mon Seals; and as to extrajudicial Acts contrary to the Laws, they have been too many and universal to be latent; but it is offered to be proven, that Burghs-Royal and Burghs of Barrony, have been in use openly and avowedly to drive on this Trade, which they endeavour to maintain. And whereas it is alledged, that consuetudinis non vilis est authoritas, verum non usque adeo sui valitura monento, ut aut legem vincat, aut rationem, l. 2. C. quae sit long. consuet. To this some Lawyers answer, that though it cannot over-power a Law, whilst the Law stands, yet it can abrogat and make the Law fall, Cont. ad dict. l. and others in­terpret [Page 141] so this Law, as that they extend it only to a growing and unripe consuetude, which cannot indeed abrogat a Law, that has not fully lost its vigor, as Cujac. and others affirm.

As to the fourth objection, it is answered, that a contrary con­suetude can abrogat a Law, sine judicio contradictorio; for, judi­cium contradictorium is not that which abrogats the Law, but only finds that the Law is thereby abrogat, and it doth not strengthen, but declare the consuetude; and the Lords of Ses­sion, by refusing frequently to declare this priviledge, have there­in done what was equivalent to a judicium contradictorium; and if this be not sustain'd, then the Burghs-Royal may crave, that all the Lieges may be debarr'd from tapping Wine, Spices or other things, absolutely necessar for the accommodation of Travellers; for, the selling of those is as expresly prohibited by the Laws founded on, as is the trading with Forreigners: Nor is the consuetude whereby these are abrogat, any other­wayes firmata judicio contradictorio, then this is; and though the Burghs-Royal declare, that they insist not at this time to have their Priviledges quoad these extended, yet certainly when they have prevail'd in the one, they will crave the other. And what an absurd thing were it, that all Travellers behoved either to lye in Burghs-Royal, or to want that accommodation which is necessar, or to buy it at exorbitant rates; and that not so much as a Candle or Penny-point should be sold, for the conveniency of the Countrey, outwith a Burgh-Royal.

I may likewise represent to your Grace and Lordships, that His Majesty is not only, because the Author, therefore the abso­lute Arbiter of this Priviledge, and may dispose upon what he hath given; but that likewise by the 26. Act of the 3. Session of His Majesties first Par. It is declared, that His Majesty has the sole Prerogative, of ordering and disposing Trade with For­reigners; and therefore, since His M [...]j [...]sty has granted to all Burghs of Regality, and many Bu [...]ghs o [...] Barrony, as full li­berty in trading with Forreigners, [...]s H [...] [...]th granted to any [Page 142] Burghs-Royal, I see not who in Law can dispute this Priv­ledge with them; at least, how the Burghs-Royal can in grati­tude debate the extent of a Priviledge with their Prince, who at first gave it. Nor can these concessions, in favours of Burghs of Regality and Barrony be alledged to be subreptitious, as is pretended, since they are not only past in the ordinary way, but are frequently past, & actus geminatus facit actum censeri non esse subreptitium; but likewise, after it hath been represented to His Majesty from the Burghs-Royal, and their Agents in Court, that this concession was contrary to the Priviledges granted to them by the Parliament, notwithstanding of all this, His Majesties Predecessors and Himself have still conti­nued to grant these concessions. And that the Burghs of Re­gality and Barrony have enjoyed this priviledge of Traffique and Merchandizing, is very clear by the 29. Act, 11. Par. I. 6. wherein it is declared, That for somuch as divers Burghs of Bar­rony and Regality were in use to exerce the Trade and Traffique of Merchandize; therefore, that Priviledge and Freedom shall be continued to them.

It hath been oft inculcat, that this Priviledge granted to the Burghs-Royal, of the sole Trade with Forreigners, is not the meer effects of His Majesties favour, and is not only founded upon the Parliaments concession, but that it is granted to them, upon the account they pay the sixth part of all the publick Impositions of this Kingdom, which makes their Contributions within Burgh to rise so high, that if they had not this Privi­ledge to ballance that inconvenience, they would not be able to ease the Countrey, by paying so great a proportion: and if Burgesses within Burgh had no special Priviledge above others, they would not live within Burgh; for, it were unreasonable to imagine, that when they might Trade as well elsewhere as with­in Burgh, that yet they would continue to live there, under great Burdens, and without any Priviledges.

To this it is answered, that the 111. Act of Parliament, I. 6. [Page 143] Par. 11. whereby it is declared, That their part of all general Taxations shall extend to the sixth part allanerly, bears no such quality; nor do the Acts of Parliament bear any such one­rous cause; But the true reason of their bearing the sixth part of the Kingdoms Burdens, is, because they are intrinsecally the sixth part of the Kingdom, if we look either to the number, or riches of their Inhabitants: and if the Burghs-Royal were ac­counted the sixth part of Scotland, under the Reign of King Iames the first, how much more great a proportion are they able to bear now, when the Burghs are six times more numerous, and each particular Burgh six times more rich and populous, then they then were? Their Riches have encreased with our Luxury, and the Luxury of our Age doth far exceed what it was in that Kings time; So that since now the Nobility and Gentry only toil to get money, to buy from Burgesses what they import from Forreign Countries, I conceive those Burghs may easily bear a sixth of our burdens, since once a year they get in all our Stock. And to any thinking man, it may easily ap­pear, that all the money in Scotland doth once a year circulat and passe thorow the hands of Citizens: for money serves only ei­ther to pay our Annual-rents, or buy us necessars; and that which is payed for Annual-rents, is by the receivers given out to others, to satisfie their present necessities, and all is ultimatly employed for Food or Rayment, and little money is bestowed upon Food or Rayment in Scotland, except only within Burgh.

Since then this Priviledge doth divide Scotland in two parts, since equity in it seems to oppose Law, and since both parties pretend to national advantages: I shall humbly move, that if this illustrious Senat be unwilling to interpose in so universal a difference, that this Debate should be transmitted by them to the Parliament which is the full Representative of all the King­dom, and the natural Judge of equity and convenience.

The Session referr'd this Case to the Parliament, who extended this Priviledge to all the Lieges.

For the Earl of Northesk, against my Lord Treasurer-Depute.
TWELFTH PLEADING. Whether a Novo Damus secures against preceeding Casualities.

My Lord President,

IT is one of the chief advantages of our Nation, in this Age, that we live under a Prince, who covets more the hearts of his Subjects, then their Estates; and who loves rather to see his Laws obey'd, then to have his Advocat pre­vail: What measure then can his fisk expect, when in ge­neral, all Lawyers have even under Tyrants delivered, as their opinion, semper contra fiscum in dubio est respondendum? And since flattery or fear may encline some, to favour the Princes Interest too much; it is fit, that Judges should be jealous of the [...] own spirits in such cases, and should bend them, rather to the other side, that they may fix at last in a straightnesse.

The case propos'd is, whether the Novo damus not expressing the casuality of Marriage specially, but all Casualities in genera [...] doth by our Law, [...]e [...]end against the Marriage?

That i [...] [...]. I presse for my Client, upon these grounds F [...]st a N [...] [...] is that, which the Feud [...]lists, call re [...]va [...] feudi, and [...] feudi doth import, liberationem ab om [...] [Page 145] caducitate; nay, the very nature of a Disposition or Alienation doth imply, a liberation from any burden, with which the Disponer could affect it, else he should alienat and yet retain, give and not give; and therefore, by the civil Law, he who dispon'd Land, was interpreted to have dispon'd it tanquam opti­mum maximum, free from all the Disponer could lay to its charge.

If any person should dispone his Land to me, and should thereafter crave a Ward or Marriage, as due out of these Lands tanquam debitum fundi; certainly it would be an absurd pursute, and I would be absolv'd; nay, if a Superior enter me to my Lands, eo ipso, I am free from all preceeding casuali­ties; nor did ever a Vassal take Discharges at his entry of any former casualities, but his entry was alwayes judg'd suffici­ent; why then should not His Majesties Vassals be in the same condition? for since this is clear in other Vassals ex natura feudi, there being no Statute in their favours, it must be due to all Vassals; for, à quatenus ad omne valet consequentia; and that which is natural to Few's, must be inherent in all Few's. The design of a Novo damus is, to secure the receiver against nullities; the Law thought to set this as a March-stone, and let not us remove it. The stile of a Novo damus in our Law, which is equivalent to expresse Law, is very exactly adapted to this design, as may appear by all its Clauses; for, when His Majesty de novo dat, that Chartor must be equivalent to an original Disposition; and sure, if these Lands had belonged to His Majesty, and if he had disponed them, that original Right would secure the receiver, against all His Majesty could crave out of these Lands, except in so far, as he did exp [...]sly reserve at the making of the Disposition; nor do I see, [...] reservations of former Rights were necessar in Dispositions, if these Rights were rese [...]v'd without them, and if they were not cut off by the Alienation it self.

[Page 146] But, not only doth this Novo damus dispone in favours of my Client, the Land out of which these casualities are sought, but it dispones them, cum omni jure, & titulo, interesse & juris­clameo; tam petitorio quam possessorio, quae nos, aut predi­cessores, aut successores nostri, habuimus, habemus, vel quovis modo habere possumus, in, & ad, dictas terras. What can be more expresse? for if His Majesty had any claim to, or right in, these Lands, any manner of way, he here dispones it, and transfers His Right, in, and to my Client; if His Ma­jesty have any Right at all, it must be vel jus, vel interesse, vel jurisclameum, and if it be either of those, it is dispon'd: But lest it might be pretended, that this Clause extended only to secure the Property (which is not its only effect. as I shall clear hereafter) Therefore, the stile of a Novo damus bears omne jus, non solum quoad aliquam ejus partem, sed & ad omnes census, firmas, & proficua, ratione wardae, purpresturae, fo­ris facturae, non introitus, eschetae, &c. vel quocunque alio jure, vel titulo: From which general Clause, I draw these inferences; first, that this general Clause must seclude His Majesty, since tantum valet genus quoad omnia, quantum species quoad specialia, Bald. consil 1. lib. 3. Gemin. consil. 65. & l. si duo ff. de admi­nist. tut. And therefore, since a special gift of this Marriage would have secluded the King or His Donator, a general con­cession must do the same, especially since this general was designed to secure against all, in respect particulars could not be remembred; even as we see in general Discharges, or Re­nunciations, which are as valid quoad all, as any particular Discharge can be, as to a special debt or deed; and since this general Discharge of all former Casualities, is so oft repeated, and represented under so many various terms, which can sig­nifie nothing, if they did not expresse the exuberant will and inclination of the Prince, to denude himself, and secure his Vassal, aginst all former Casualities, as well Marriage as others: and this Clause is equivalent to that Clause spoken [Page 147] of by the Doctors, quovis modo vacet, which comprehends omnem modum vacandi, & omnes formas excogitabiles renuncia­tionis, Cap. consil. 14. 2. General Clauses subjoyn'd to specials enumerat, must be extended at least to all such spe­cialities, as are of the nature of the specialities enumerat; for, the subjoyning a general to specials, is designed to supply the not enumeration of other specialities which are homogeneous, clausula generalis quae sequitur casus speciales enumeratos, ex­tenditur ad similia specificatis, Socin. consil. 316. But so it is, that the casuality of a Marriage is of the same nature, with many casualities he especifically exprest, such as Ward, Non-entry, Escheat, &c. to which the Superior having right in the same way as he has to Marriages, it is presumed, he would dis­charge it in the same way with them. 3. General Gifts must be extended to such particulars, as probably the Granter would have gifted if they had been exprest; but so it is, that it is beyond all doubt, but, that His Majesty, if he had been asked, whether he was content to dispone and gift the Mar­riage, he would have consented very freely to gift the Mar­riage, as well as the other Casualities, this Marriage must therefore passe under the general; and how can it be thought, that he who granted all other Casualities, would have refused this? or what speciality was there in this Casuality, which might have occasioned this refusal? Nam geineralis clausula idem operatur, quod specialis, ubi non subest ratio diversitatis, Curt. consil. 19 and upon this ground it is statute, that general clauses in Remissions, shall be extended to all crimes of lesse gravity, then the chief crime which is exprest, Act. 62. I. 4. Par. 6. and if great crimes can be taken away by general clauses, sure it can­not be denyed in civil Casualities, which are of their own nature easier pardon'd, and of lesse consequence: and by that Act, it is clear, that the general clause was extended formerly to all, even greater crimes then the crime specified; a [...]d if a Statute was nece [...]sar there, it is much more necessar here, els the [Page 148] general clause cannot be restricted. Sure he who granted the Property, would not stick at a Casuality, he who granted the greater, would not stick at the lesser; he who granted so many Casualities, would not stick at one; he who granted all the others of that same nature, would allow this to passe with its fellows; and he who granted Ward, which is the cause of Marriage, would not have refused, to grant the Marriage, which is but an effect and consequent of that Ward: And this leads me into another Argument, upon which I lay very much weight; His Majesty has here gifted omnia pro­ficua & devorias quae contigerunt ratione Wardae; but so it is, that Marriage is a Casuality proficuum & devoria; which falls by reason of Ward-holding: and so contingit ratione Wardae; for, Ward here is taken not as a naked Casuality, but as a holding, and therefore it is, that when by the stile of a Novo damus, all Casualities are enumerated, Marriage only is not specified in the old Signatures, because that casualitiy was still lookt upon, as comprehended under the general, omnia proficua ratione wardae. Not only do many general terms of this Novo damus secure against this and all other Casualities, but His Majesty in his concession, expresses all the wayes of transmission, where­by these Casualities could be given by him to his Vassal, viz. renuntiando, transferendo, & extradonando eadem, cum omni actione & instantia: and in contemplation of this Right, His Majesty has a considerable composition in Exchequer, which makes this to be not only a Gift, but a Bargain, not only meer Law, but Equity.

To ballance these reasons, it is represented for His Majesty, and his Donator, that all his Majesties concessions are gra­tuitous, and must not be too largely extended, for what com­positions are payed, are rather payed as fees to his Majesties Officers and Attenders, then as a price, and these are too low, and unproportionat, to what is given, to deserve that name. 2. That his Majesty cannot be prejudg'd by the neg­ligence [Page 149] of his Officers, and what he passes in favours of his Vas­sals, deserve a far other construction, then what is done by other Superiours; and though general Clauses may carry away Casuali­ties from them, because it is presum'd, that they have leisure to ponder every word, in any Right they grant, yet His Ma­jesty being loaded with the weighty affairs of the Nation, can­not vaick to so exact observations; and therefore it was thought fit, that the negligence of His Officers, nor the importunity of parties, should not prejudge him. 3. That the gift of a Ward, per se, would not carry the Casuality of Marriage, if it were not exprest; ergo, Marriage could not be comprehended, under the Casuality of Ward which is here exprest. 4. That general Clauses are in many cases but error stili, and are restricted by the decisions of all our Courts; thus though the stile of a Gift of Escheat, doth dispone all moveables which the Rebel had, or shall acquire; yet, these Gifts are restricted by our decisions, to what the Rebel had, the time of his rebellion, or should acquire within a year after the rebellion: though Gifts of Ward and Marriage bear, ay and till the entry of the next lawfull Heir, yet these Gifts are restricted to three terms Non-entries, subsequent to the Ward; and though Gifts granted do bear relief, yet they would not carry a right to the relief. 5. That the design of a Novo damus is to secure the Property, but not to transmitt a Right to any Casualities not exprest; and thus the King might, notwith­standing of a Novo damus crave bygone Few duties; nor would it debar His Majesty from craving Taxt-wards or Marriages, as was decided in the case betwixt His Majesties Advocat, and Pierstoun, where it was found, by the Exchequer, that Mar­riage was not comprehended under the Novo damus, because it was not exprest.

I am not, my Lords, willing to lessen His Majesties fa­ [...]ours to His Subjects, who were not worthy of them, if they undervalued them; and therefore, I beg leave rather to mag­nifie [Page 150] them so far, as to think, that they should not be interpret so narrowly, as to bear a proportion to our deserts, (for the favours of Princes cannot, like his whom they represent, be merited) but so augustly and opulently, as may bear a pro­portion to the greatnesse of him who dispenses them, as Clarus and all the Feudalists observe; and if the word can admit a large interpretation, the grants of Princes ought to have it: So, that since these general clauses would carry all Casualities in Gifts granted by privat Superiors, much more ought this to be allowed in augustioribus principum concessionibus, especially in Dis­charges granted by them of all former incumberances, which being of the nature of Indempnities, ought like them to be interpret all possible wayes to defend the poor Vassal. Nor do I deny, but the negligence of His Majesties Officers should not prejudge His Interest, yet, Gifts granted cannot be called negligence; for the one is an omission, and the other a com­mission; the one is a privation, and the other a positive act; the design of that Statute was to defend His Majesty against the omission of His Officers, such as the suffering His Rights to prescrive, or omitting to propone Defences for him; and the words of the Act 14. Par. 16.Ja. 6. are, that in the pur­suing or defending any of His Actions or Causes, the negligence of His Officers omitting any exception, reply, &c. shall not pre­judge him. But God forbid that every Gift granted by His Majesty, and past by his Exchequer, might be thereafter que­stioned, because a sufficient composition was not payed, or that it was not founded upon a sufficient cause; for else, all our Sig­natures and Rights might be questioned; this were to unhinge all our Securities, and to endanger all His Majesties Officers; but how can what is past His Royal Hand, be thought to be past by the negligence of His Officers? And how imperti­nent were it, for his Officers alwayes to stop what His Majesty commands?

[Page 151] I confesse, that the Gift of a Ward per se, would not carry Marriage; but if His Majesty did grant omnia proficua ratione Wardae contingentia, though in a single Gift, I think it would give right to the casuality of Marriage; and yet, that case would not be so strong as ours; for in single Gifts, it is proper to expresse Casualities dispon'd, but in a Novo aamus it is other­wise; for the design there, is by the enumeration of all special Casualities, and by subjoining a general to these, thereby to se­cure against all these Casualities.

To what is founded upon the errors, that are in many of our Stiles, I need only answer, that regulariter stilus aequipollet juri, & pro Lege habetur, l. si quando C de injur. Bart. in l. peritos ff. de excus. tut. And therefore, though as Laws may be abro­gated or restricted, so Stiles are subject to the same frailty; yet, unlesse it can be made appear, that these Stiles are restricted by the constant current of Decisions, or by some expresse Laws, certainly, Stile must rule us: Stiles are the product of common consent, and are introduced after much experience, by such as understand; they are to Lawyers, what the Cart is to Geogra­phers, or the Compass to Sea-men; and this is so far from being convell'd, that it is established by the instances adduced, by the Donator for Gifts of Escheats and Non-entries, did take place according to the latter, till they were restricted by expresse Acts of Exchequer: and sure these Acts had been needlesse, if the Stile had not been binding, before these Statutes drawn back­wards, but having a future obligation only, every man knew how to compone or transact for them accordingly.

As to the instance of Reliefs, by-gone Few-duties, Taxt­duties of Ward and Marriage (which was Pierstons case) it is clear, that the reason why these passe not under general Gifts is, because they are liquid, and so cannot be compon'd for, in Exchequer, as Hope well observes, for these are no contingencies; and since the Law gives right to any thing in a Signature, be­cause it is compounded for; therefore, in justice these things [Page 152] cannot be comprehended in a Signature, which are not com­pounded for. We have likewise an expresse Act of Parliament, appointing that Reliefs should not be compounded for, which draws out these from the common objection, and states Reliefs in a case far different from ours.

And though it be much urg'd, that His Majesty having taxt the casuality of Ward and Marriage in this Gift, it is most presumable, that He would have exprest the casuality of Marriage, if he had designed to have transmitted it, since that casuality was then under consideration: Yet, this is but a remote conjecture, and must cede to the stronger presumptions urg'd in the contrair; and since the Signature is not drawn by His Majesties order, but by the Vassal, the presumption ceases; and it is more presumable, that the Vassal would have exprest this casuality, had he thought it necessar: and whatever might be urg'd, if this casuality of Marriage had been exprest, but had been delet; yet there can be little difficulty, where the Signature was presented without it, and where the Vassal rested upon the general Clause.

All the Lawyers of our Nation have advised, that this Novo damus did seclude Marriage, though not e [...]prest; all the people have esteem'd so, and upon that esteem, they have bought and sold accordingly, Rights carrying such a Novo damus; So that whatever may be done as to the future, yet since so many have compon'd with His Majesty for such Gifts, in contemplation they carryed all Casualities, and that so many have given con­siderable sums to such as had compon'd for them, upon that con­sideration; Since this opinion was so old and universal, and since ignorance in it (if it be an error) was so invincible, being war­ranted by the advice of the ablest Lawyers; I cannot see how in Law quoad preterita it can be otherwise interpret, whatever fate it may have for the future.

The Lord found, that a Right granted by the King, with a Novo Damus, did not only secure the Property, but secluded all Casualities that were exprest; but that it did not defend against Casualities which were not exprest.

For John Johnstoun, againstJames Hamiltoun.
XIII. PLEADING. Whether a Contract entered into by a Minor, who averr'd himself to be Major, and swore never to reduce, be revocable.

THe Law might seem a severe Master, if it only impos'd upon us what we were to obey, and exacted from us an intire submission to what it did command: but in re­compence of our submissions, it returns us its protection, it doth supply want of strength in the weak, when they are in­gaged against the strong; want of wit in the simple, when they are ingaged against the subtile; and want of age in Minors, who would otherwayes be very easily circumveened: it appoints its Judges to be their Tutors, and whilst such as rely upon their own wit, may be circumveened, they are by its assistance plac'd beyond all hazard.

Amongst those other Minors, who dayly come to crave from you, the reduction of what they did in their Minority, none was ever more favourable then my Client, he being a person, who because of the lownesse of his parts, and meannesse of his breed­ing, is like to continue very long a Minor. And if sharpnesse, & malitia, can in some cases forestal Majority, and almost meet it half way, certainly want of wit and ordinar sagacity, should extend the priviledge of Minority. The person by whom he is laes'd [Page 154] being his own Kinsman, and one in whom he confided very much, pleads likewise for a more liberal reparation, and the same principle which makes murder under trust to be treason, should likewise make the lesion here to be more easily reparable, and should not only weaken the Defences, but should likewise be a sufficient ground to repell such as were of themselves relevant: and the lesion here, is not one of these small injuries, but is a great and considerable losse, wherein the Minor has not only been induced to sell his Land, though the Law appoints, that a Minors Land should not be sold, but by the Authority of a Judge; but to sell his Fathers Heretage, transmitted to him by a long series of Ancestors, and to sell it too without the con­sent of his Curators, who are the only persons who should defend and supply his infirmity.

Against these reasons, it is debated for the Defender, that though Minors have great priviledges allow'd them in Law, yet many causes may occurre, wherein it were unjust to propor­tion exactly the prices of what they sell, with the ordinar prices of what is sold; and the same equity whereupon their priviledge is founded, may make such exactnesse, not only to appear to be, but really, to be rigour. As if a Minor should, to free him from the Gallies, obliege himself to sell Land at an easie purchase, to one of his Countrey-men, who were then in a Forreign Country with him, and from whom he could only expect money, and which money being to be bestowed up­on Merchandize in these Countreys, might produce far greater advantage to the Merchant, then the Land could; which, and many other instances, may clearly evince, that if Minors had not some way whereby they might secure such as would con­tract with them, the Law would secure them, but as it doth prisoners, and which was designed to keep them free, would take their freedom from them; and therefore, the Law has introduc'd, that Minors being in confinio majoritatis, may subjoyn an oath to their Contracts; which oath is, because of its [Page 155] divine character, and of the reverence thats due to that great God, who is called upon as witnesse in it, by all Christian Lawyers declared to be sufficient to fix and corroborat the Con­tract to which it is subjoyn'd. For, the Law of God oblieg­ing every man to observe what he has sworn, even though to his prejudice, it were unfit that the Laws of men should be more binding than those. Likeas, by the common Law, l. 1. c. si adversus venditionem, an oath confirming Vendition is de­clared binding, Nullam te esse contraversiam moturum, neque per­jurij me auctorem tibi futurum sperare debuisti. And authent. Sacramenta puberum, doth expresly tell us, that Sacramenta puberum sponte facta, super contradictibus rerum suarum non retractandis, inviolabiter custodiantur. Which is likewise observed by our Law, the last of February, 1637. and by a late decision, 10. February, 1672. Mr. George Wauch contra Bailie of Dunraggat. But not only has this Minor oblieged himself upon oath, not to revocke, but he hath likewise declar'd upon oath in the same Bond, that he was Major, and Majority being that which cannot be known by the eye, and there being no liquid and present proof of a Minors age, the Law should have prejudg'd Commerce very much, if it had not allow'd that a Minor asserting himself to be a Major, should notwithstanding be restor'd against his own declaration: for by this, not only should Minors be disabled from getting money to do their ne­cessar affairs, but likewise Majors behov'd still to wait till they should get an exact probation of their Age; which probation is very difficult with us, where there are no certain Registers; and consequently, Majors might, because the probation of their Majority could not be presently instructed, be very much prejudged, and sometime the probation of Age, being that which cannot appear convincingly to the sight; and that being a case, wherein such as contract with Minors might be cheated, it was very just, that since the Law designed only to assist Mi­nors that were cheated, that it should not give the same pri­viledge [Page 156] to such Minors as cheat others, by asserting themselves to be Majors, l. 2. Si min. se major. dixerit. Si is qui minorem nunc se esse adseverat, fallaci majoris aetatis mandacio to deceperit, cum juxta statuta juris, errantibus non etiam fallentibus minori­bus publicajura, subveniant, in integrum restituti non debet. And since Dioclesian, who was not only no Christian, but a persecuter of them, did bear such respect to an Oath, what respect ought it to have from Christian Judges, who if they suffer this Oath to have no effect, are the occasion that the Name of God is taken in vain?

Minors may be punish'd for perjury, falshood, and cheating, and therefore, it followes necessarily, that they may much more be bound by Oaths; for it were injust to punish them for per­jury, if they understand not perfectly the strength and efficacy of an Oath, and if they do understand that, there is no reason to absolve them from it: and if it can bind them to severe and corporal punishments; it can bind them much more to the per­formance of civil Contracts.

Nor can it be deny'd, but that our Law respects so much an Oath; and finds it so obligator, that deeds done by Women in favours of strangers, stante matrimonio are null, though ratified by an Oath, as was decided 18. February, 1663. Brisband con­tra Douglas; at which time, the Lords were of opinion, that all obligations which are ipso jure null, such as obligations made by Women stante matrimonio, and by Minors having Tutors and Curators, but without their consent, are still null, though they be ratified by an Oath: and if this be true, as is acknowledged, they contend, that there is no reason why all Contracts entred into by Minors should not be valid, for the obligation of an Oath lyes in the hazard of perjury, and in the religious respect which Lawyers have to Oaths; and in point of Conscience, what difference is there betwixt Contracts ipso jure null, or such as are not so? God takes no notice of such subtile differences, and since the Oath is the same in both, [Page 157] why should it not produce the same effect? It is the Oath which in this case oblieges, and therefore, though the Contract were null, yet the Oath still binds, and subsists, though annext to an null Contract, even as a null Contract may be ratified, or homologated. And that Contracts upon Oath, do bind Minors, though they have Curators, and though they sub­scribe without their consent, is maintain'd by most famous Lawyers, as Andreolus, contravers. 202. Est enim haec opinio (inquit ille) fundata in religione juramenti, quae semper militat, sive Minor habeat Curatorem, sive non, & censequenter cum religio juramenti, & odium perjurii in utroque militat casu, in utroque etiam debet manere effectus. Other Lawyers assure us, that juramentum Minorem, representat Majorem, and therefore, since Majors are bound, and Minors swearing are Majors in the construction and interpretation of Law, Minors swearing should be also tyed by these Contracts. Nay some have said, that juramentum fingit Minorem non habere Curatorem. Bald & Corn. ad auth. sacramenta pub. And according to the Canon Law (which Craig sayes, we follow in what concerns our con­sciences) juramentum semper est servandum, quotiescunque potest servari sine dispendio salutis aeternae.

It is likewise alledged for him, that Minoribus deceptis, non decipientibus est succurendum; because there, the want of wit, which is the ground of restitution, ceases; and it were also unjust, that this remedy should be abused against the design of the Legislator; nor should the Minor have the protection of that Law, which he has offended: But so it is, that its offered to be proven here, that the Minor was a person traffiqu­ing upon his own account, and such cannot be restored, Fortia de restit. min. part. quaest. 23. How dangerous were it, if such as were Merchants, and common Traders, should be repon'd? for then, who should Contract with them, or how could in­nocent people be secured? That same necessity and publick interest, which introduced the priviledges of Minority, has [Page 158] likewise introduced many other priviledges in favours of Com­merce; and since it were disadvantageous to debar Minors from Trading, it were unreasonable to state them in a condition, in which their Trade would be ineffectual; for who would bargain with them, or bestow trust upon them, if their transactions could be rescinded upon the pretext of Minority? It is (say they) to be presumed, that experience and art (learned by them whilst they were practisers) doth supply the imbecillity of their greener years, and since by learning and art, such as are very young do outstrip very far such as are of riper years, and attain to very much exactnesse in the subtilest Sciences, why may not application refine them also to a sufficient consistency in merchandizing, in which there are no such mysterious points? Upon which account, even our Law has introduced, that Advocats, Nottars, and others in publick Offices, can­not revock what they do in their Minority, as was decided, 19. July. 1636.

If, say they, the Minor was forced to sell his Heretage, it was to redeem his person from prison, and freedom is prefe­rable to Heretage, because liberty can please without Heretage, but Heretage signifies nothing to one who wants liberty; and for this Heretage my Client gave out his money, by which he had raised himself to a considerable Fortune, and being forced by want of this money to quite his Trade, he did loose hope of gaining a greater Estate, then that which the other sold: but this he did to prefer his friend to his hopes, and so this frendship and relation which the Pursuer would make the foundation of a Cheat, was indeed the foundation of this favour, and the Law presumes, that his Cousen would not have cheated him.

Notwithstanding of all which plausible representations, I humbly conceive, that the Minor my Client ought not to be tyed by this Oath; and that what I debate in his favours may be the better understood, your Lordships will be pleased [Page 159] to consider, that all civil polish'd Nations, have in effect re­signed so far their liberty to their Legislators, that these in their Contracts, are to be ruled by those in their Statutes: and God Almighty is more concerned in the oeconomy and govern­ment of the World, then in the observation of privat Oaths; and therefore, we must consider more the force of a Law, then of an Oath; and if privat Oaths amongst parties could derogat from publick Laws, then the publick Laws should be absolutely evacuat, and remain as the empty shadowes of what they ought to have been. And from this I infer, that since the Law has thought fit to declare all deeds done without the consent of Tutors and Curators to be null, that no deed done by any Minor having Curators, can bind him, except he be authoriz'd by their consent.

And from the same principle, I likewise infer, that the former distinction made in Law, betwixt such deeds as are ipso jure null, and such as are not ipso jure null, but are only re­duceable, is so far reasonable, in relation to this contraversie, that though deeds that are ipso jure null be not reduceable, if they be not confirmed by an Oath, yet deeds that are ipso jure null, are reducable though sworn; for in case the deed be ipso jure null, it is reprobated by Law, and so is no deed in the construction of Law; and if it be no deed, it cannot be con­firmed by an Oath, for a confirmation presupposes a pre-exist­ing deed, sed non entis nullae sunt qualitatis nec accidentia; and so this Oath wants here a basis upon which it can be fixt. 2. It were unfit, that what the Law has expresly condemned, it should allow others to evite, for it should thus cheat it self out of its own authority, by such indirect courses, Et quod directè fieri non licet, nec per ambages fieri licet. In vain were Laws to be made, if every privat man might enervat its force, and evite its sanction by such subterfuges; this were to invite men to break and scorn Laws, to allow them to tear off their own yoak, and to place every privat man above the Legislator. [Page 160] For, as Oaths exacted by Magistrats obliege not, when they are contrair to the Laws of God; so the Oaths of privat persons obliege not, when they are expresly contrair to the Laws of our Rulers, who are gods upon earth. And as vows are declared null by God himself, if given by a Maid without the consent of her Father, so should Oaths for the same reason not obliege such as have Curators, for these are the Parents in Law. 3. No Oath can be vinculum iniquitatis, the tye of injustice; but so it is, that where a deed is declared null by the Law, that deed is in so far injust; and to allow a deed that is injust because it is sworn, were to establish injustice by an Oath, and to put it in the power of every privat person, to alter the nature of things, and to make that just which is injust. 4. This would disappoint the cares and pains of the civil Magistrat; for, his design being to secure our posterity, because of the imbecillity of their Judgment, that would be absolutely eluded, and poor Minors would by that same want of Judgement and sagacity, for which their deeds are reduceable, be induced to swear, and so the remedy will become effectual, nam eadem facilitate ju [...]ant qua contrahunt. And since Minors cannot be oblieged in their Minority, because of their imbecillity, Oaths should not bind them, except it could supply that; and since the Law has given them Curators, it is just the deeds done by these Minors should not be respected in Law, since the forms prescribed by Law are not observed, nor the reason satisfied whereon it is founded. 5. This would open a door to perjury, for such as could not cheat Minors, because of their lesse age, would cheat them by their Oaths; and thus, Oaths which should not be given but upon solemn and extraordinary occasions, would become cheap, and would be taken in every Ale-house, administrat by every Nottar or his Servant, and the best of tyes would oftimes be us'd in the most sinfull occasions: and how can such Oaths as these obliege, since they want all the three qualities of an Oath, and for which, Oaths are declared [Page 161] in Scripture to be obligator? and these are, that they should be in truth, in judgement, and in righteousnesse. I know, that every man may renunce what is his own interest, but this Maxime holds only where men understand their own interest, but not in Minors, who want that ripenesse of Judgment, by which their Renunciations are sustain'd. And that the Oath is obligatory, though not the Contract, is but a meer quible, for there is no action arising in common Law from an Oath, qua tale, Bart. ad l. si quis C. de fidejuss. Imol. ad c. cum contingat de jure-jur. Such an Oath oblieges in Conscience, but not in Law, and though it be the substance in the one, it is but an accident in the other.

I need not debate here, that the authentick Sacramenta puberum, ascribes only this cogency to Oaths which are given tactis sacrosanctis evangeliis, which though it may seem but a solemnity, yet has great force with it, in my opinion; for solemnities do raise up the attention, and obliege more the swearer to advert to what he is promising: and if Witnesses and others come to age, need these advertisments, much more do Minors need them, since they are oft overtaken by inadvert­ence. And as this caution seems not to have been unnecessarily adjected by that excellent Law; so Seraphinus and others have required necessarily, that solemnity in such Oaths as these, antiqui quo major esset jurisjurandi religio, plerasque adinvene­runt ceremonias, quae jurantibus terrorem ac formidinem incute­rent, Ann. Robert. Pag. 188. and swearing by touching somewhat that was sacred, was very old.

Tango aras mediosque ignes & numina testor.

Justin. also, l. 22. relates, that Agathocles swore a confederacy with the Carthaginians, expositis tactisque ignibus cereis: and by all our old Evidents it is clear, that swearing upon the Bible or Altar, was used in all extraordinar cases. And for the same reason, Oaths in Writ have been oft-times little respected by Lawyers, because the Writ is oft-times not read nor considered, [Page 162] and passeth by too transiently to have all the force which a so­lemn and judicial Oath deserves, vid. Bart. and l. qui ju­rasse, ff. de jure-jur. & fachin. contrav. lib. 3. cap. 8. So that we should either not seek the benefit of these Laws, else we should make use of the forms and ceremonies which they prescribe.

As to the assertory Oath, by which the Minor swore that he was Major, it is answered, that such Oaths ought not to be respected furder then as the above-cited Laws declare, which is, that these Oaths ought to be believ'd, except the contrair can be proven by Writ, and that the truth and strength of this probation cannot be taken off, and enervat by Witnesses, for a Writ is a more binding, and concluding probation then Witnesses, who may be mistaken, or may be corrupted. Si tamen in instrumento per sacramenti religionem majorem te esse adseverasti, non ignor are debes, exclusum tibi esse in integrum restrictions beneficium, nisi palam, & evidenter ex instrumen­torum probatione, per non testium depositiones te fuisse minorem ostenderis. But here it is offered to be proven, by the Register of the Church-session where my Client was baptized, that he was Minor the time of the transaction, and by this your Lord­ships may see, how dangerous it were to make such Oaths as these binding, and how easily Minors may be induced, not only to bind, but to damn themselves, and how little this person deserves, who was the occasion and sollicitour of the perjury: were not this to baffle that sacred tye, by which Princes bind their Subjects to a secure obedience, by which Judges obliege men to reveal the truth, and by which every privat man is secure, when he referreth to his adversars Oath, the truth of what is contraverted amongst them. Nor can the Defender maintain this Contract, as entered into by my Client, who was a Merchant by his profession, since though that may defend such as Contract with him, in things relating naturally to his Commerce, yet that should not be extended to such Contracts [Page 163] as these, wherein my Client is bound to sell his Heretage at too low a rate, Et quae ex necessitate per modum privilegii in­troducuntur, ultra casus necessarios non extenduntur. Lands are not the subject matter of that traffique which the Law doth priviledge; but on the contrar, Lands is not allowed to be sold, without the consent and sentence of a Judge: nay, and even these qui veniam aetatis à principe obtinuerunt, will be restored against the prejudice sustained by them in selling their Heretage, l. 3. c. de his qui veniam aetat. albeit no man could impeterare veniam aetatis, till he was past eighteen, and was proven to be prudent and frugal, l. 2. C. eod. which is all that can be alledged against this Minor. Nor should our Law respect much confi­nium majoritatis, since they have shortened too much the years of Minority, in making it end at twenty one; whereas, the Ro­mans and others who were sooner ripe, and more sagacious then we, extended Minority to twenty five: and since our times are more cheating then theirs, it was fit that our Minority should have been longer then theirs. But however, both of us agree, that minorennitas computanda est de momento in momentum.

To conclude then (my Lords) sure that opinion in all con­traversies should be followed, which may do good, and can do no harm; and that is to be reprobated, which can do harm, and is not necessar towards the doing what is just. But so it is, that not to restore a Minor in such cases as these, may, and will ne­cessarily destroy all Minors, who may be over-reached, and can­not be repon'd, because of such Oaths; whereas, such as contract with them, can suffer nothing by such reductions; for, either the Minors with whom they contract, are laes'd, and then they will not be restor'd, and therefore, such as contract with them cannot be prejudg'd: but if they can make it appear that they are prejudged, it will necessarily follow, that the Minor is not laes'd, and so the Contract will not be lyable to reduction; and thus these Oaths will infallibly prove to be either unnecessar, or unjust.

This Cause came not to a Debate.

Against Forfeitures in absence.

My Lord Chancellour,

WE have subjected to our consideration, an Overture, which ought to be seconded by very convincing ar­guments, before we pass it into a Law, seing it inno­vats a custom, which is as old as our Kingdom, and older then our positive Laws. And customes, like men, may be thought to have had excellent constitutions, when they last long; and this Act, if past, seems to infer the greatest hazard upon the two highest of our concerns, for such are our Lives and Fortunes.

The old inviolable custom of Scotland was, that no probation could be led against absents, either in Treason, or any other Crime, in any Court, save the Parliament; but the only cer­tification in all criminal Letters, was the being denunced Fugitives (or out-law'd as the English speak) which custom hath maintained it self for many hundreds of years, by its own reasonablenesse, without the necessity of being fenced with any other Authority: and albeit the Parliament did reserve to themselves, a liberty to proceed against Traitours, in case of absence, yet they never granted that to any other Court; [Page 165] whereby it clearly appears, that our Predecessors have thought that power incommunicable to all such as were not Legislators, that procedure being rather a priviledged transgression, then an execution of the Law. But it is now craved by this Act, that in case of perduellion, and rising in Armes against the Prince, it shall be lawfull to the Justices to lead probation against absents, and forfeit them accordingly; which seems to me most inconvenient, for these reasons. 1. Because the Stiles in all Courts are equivalent to fundamentals, and by an expresse Act of Parliament with us, Stiles are not to be altered: But so it is, there is no Stile in the Justice Court, bearing any other certification against absents, but the being denunced Fugitives. 2. There was never any Instances of it since the foundation of the Justice Court, and a negative Practique being so old and uniform as this, is most binding, especially where all the conveniences, reasons and advantages which are now prest, were then obvious; our Predecessors were sure as Loyal as we, and let us not be more cruel then they were. 3. The old custom was founded upon most con­vincing reasons; for when persons are proceeded against in absence, they want the benefit of exculpation, for proving those just defences which are of so great consequence to them, and their posterity; such as are, That though they were present upon the place, yet they were taken prisoners, and carried there, and were only going loose upon parroll, or fell accidentally amongst those Rebells, who had gathered themselves together, or went there by a command from some of His Majesties Officers, for reclaiming those who were in Armes, with many other defences which (the party being absent) none can know, and though known, none dare propone, it being a maxime in our Law, that none dare propone any thing to defend one, who being pursued for Treason is absent. Another great disadvantage, under which these will fall who are pursued in absence, will be, that such witnesses may be received against them, as are lyable [Page 166] to just exceptions, and whom they would decline, if they were present; which objections likewayes, none know, nor dare pro­pone; and it is likewayes very well known, that there are many witnesses, who will depone upon suggestion, very many things which they durst not assert, if they were confronted with the party against whom they were to depone, being sometimes overawed, and sometimes through pitty driven to speak only truth, when they look upon his countenance who is to live, or die by their depositions. Upon which accompt, confron­tation of witnesses and parties hath, in the civil Law, been used as a successful remedy, and in ours the witnesses are ordain'd to look upon the pannells face when they depone. And albeit it may seem, that there is little hazard of a probation, where the case is so notour, as that of rising in Armes; yet, the mistake lyes in this, that though the rising in Armes be notour, it may be it is not notour who were present, and the persons may be doubtfull, though not the thing it self. A third great in­convenience is, that whereas those who are present may by in­terrogators, restrict, or explain, what seem'd disadvantageous in the deposition of such as depone against them, they will by this innovation, forfeit this advantage amongst other losses. 4. No other Nation receives concluding probation against absents; many instances whereof might be given, but I shall satisfie my self with that of Freisland, cited by Sand. lib. 5. def. 2. Praxis nostra habet ut Criminosus si fuga se substraxerit, ad instantiam procuratoris generalis citetur, & si praefixa die non comparet, fiducialiter bona in contumaciae paenam annotantur: which is exactly our custom; and by the civil Law, Tantum annotabantur bona rei non comparentis, ita ut si post annum venerit, & satis dederit de stando juri, ea recuperat si non, bona perdit non tamen de delicto habetur pro confesso, l. 1. & gloss. l. pen. & fin. ff. de requiren. reis. which Title begins thus, Divi-fratres rescripserunt ne quis absens puniatur, & hoc jure utimur, ne absentes damnentur. And Hottoman tells us, that Majestatis [Page 167] crimen in foro apud suum praetorem, perduellio vero à populo Romano comitiis centuriatis in campo martis judicabatur; which was much more reasonable, then our present overture, seing the greater the crime is, it should be the more solemnly, and slowly judg'd: from which procedure of the Romans in Perduel­lion, it seems our old practique of judging only absents in the matter of Treason by a Parliament hath taken its origine, for Comitiae centuriae was to them, what a Parliament is to us. I might here likewayes, alledge the authority of Mathaeus, the Learnedst Civilian who ever wrote upon that subject, tit. 2. num. 6. whose words are, Denique cum leges vetant absentem damnari, crimen perduellionis non excipiunt erit igitur & hic observandum, quod in aliis crimintbus, ut absens requirendus adnotetur, & bona obsignentur, publicentur denique, si intra annum non responderit. L. absentem, 5. C. de poems. l. absentem. 6. C. de accusat. l. ult. D. de requir. vel abs. damn. Nam quanquam Perduellio gravissimum crimen est, videndum tamen ne in occasio­nem sevitiae atque calumnie habeatur; & pag. 371. dicit Math. Falsum esse absentem in hoc crimine posse damnari, nec ullo juris loco excipi crimen Majestatis. Dicitque supradictam extrava­gantem Constitutionem, nullam authoritatem obtinere apud inter­pretes juris civilis. 5. By the 90. Act. Parl. 11. Ia. 6. It is most justly statute, that all the probation should be led in pre­sence of the Pannal, and the Assyze, which showes clearly, that our Law hath been alwayes jealous of probation led in absence, and that probation is only to be led in presence.

This innovation is recommended to us upon these reasons; 1. That these who are contumacious, and flee from justice, should be in no better condition then those who appear, and they cannot complain of any of the foresaid disadvantages, seing these are occasioned by their own absence and fault. To which it is answered, that a person who is pursued for Treason may be absent, not upon the accompt of any guilt, but because the citation never came to his knowledge; as if he be at the time [Page 168] abroad in Forraign Countryes, where citations at the Mercat­crosse of Edinburgh, and Peer and shore of Leith (which is all our Law allowes) seldom reach; and sometimes the persons summoned, may be either sick, or in prison, and not be able to appear, or being lyable to other accusations, or fearing rather the present influence of some enemies, then their own guilt, dare not. For though Treason, as the most com­prehensive of all other crimes to us, be of all others most abominated, when proven; yet, of all other crimes, most Innocents are, by either malice or design oftest ensnared, upon pretext rather, then by the guilt of Treason. For, as Lipsius observes of the times wherein Tacitus wrote, Fraequentatae tunc temporis accusationes majestatis, unicum crimen eorum qui crimine vacabant. Tertullian in his apol. sayes, non licere inde­fensos omnino damnari, & à Carolo Magno institutu est, lib. 7. cap. 145. Ne quis absens in causa capitali damnetur. Plutarch in Alcibiades life, makes Alcibiades to have given this prudent answer, to one who challenged him for not appearing to defend himself, Cetera (inquit) omnia libenter, sed de capite meo, ne matri quidem, ne forte is, pro albo atrum calculum imprudenter injiciat. Notat. & Liberius Pontifex Romanus Constantio Imperatori, Judicem non posse, absente reo, de crimine ejus judicare, nisi aut iniquus Judex sit, aut privato odio saevit. Hist. tripart. l. 5. cap. 16. Seneca saith, lib. 6. de Beneficiis, cap. 38. Quan­tum existimes tormentum, etiamsi servatus fuero trepidasse, etiamsi absolutus fuero, causam dixisse. And as Cicero very well ob­serves, these who are accused before any Judge for life, consider oftner what that Judge may do, then what in justice he ought to do, Oratione pro Quintio. And thus we find, that Athana­sius and Chrysostom would not appear at Councils, to which they were cited, albeit they feared their Judges more then their guilt, Niceph. lib. 8. c. 49. It were therefore very hard in any of these cases, to forfeit an absent of his Property, seing in these, innocence and absence are very compatible. Nor doth His [Page 169] Majesty suffer great losse by this, as is urged; for if he who is pursued for Treason compear not, he is denunced Fugitive, and by that denunciation, His Majesty possesses his whole Estate, till he die, or compear; and after death, he may be forfeit.

The second Argument is, by the 69. Act. Par. 6. Ia. 5. Traitours may be forfeit after their death, in which case they are absent, and want all the advantages above related. But to this the answer is, that the Law is so just, and mercifull, that after a person is denunced Fugitive in the case of Treason, it allowes him all the dayes of his life to purge his contumacy, by appearing to reclaim his innocence; and it never dispaires of the one, till the other be elapsed: and when it proceeds against any man to forfeiture after his death, it ordains the nearest of Kin to be called to exculpat him, by proponing defences, or objections against the witnesses, and for doing every thing els which is usual in such cases, or which might have been done by the Defunct himself, whereas he who is pursued in his own lifetime, cannot defend after that manner, as said is. After death likewayes, death it self, which is the greatest half of the punishment, is over, and there is not so great hazard, as there is in his case, who is forfeit dureing life, who is by that Sentence (without any possibility of hearing) execute imme­diatly upon his being apprehended. After death also, malice, and design ordinarily ceases, so that the errors or prejudices of either pursuer or witnesse are not so much to be feared.

The third Argument is, that probation may perish in the mean time, if it cannot be received till after death. To which it is answered, 1. That this Argument, aut nihil, aut nimium probat; for, upon this account, Pursutes should be sustain'd for all other absents, this prejudice being common to all: But, 2. It is safer, that a just probation should perish, then that a sus­pected one should be received; and this one inconven [...]ence should not weigh down the many, which are laid in the ballance of the other side. Parliaments are ordinar, and necessa [...]y a [...]t [...]r [Page 170] publick Rebellions, wherein that horrid Crime may receive its legal, as well as its just punishment; or if they meet not, this may be otherwayes remedied; for, probation may be led ad fu­turam rei memoriam, though the party be absent, reserving to him all his other defences, by which the Kings right may be pre­served, and the Lieges rights not prejudged, and of all proba­tions, that can least perish, which is to be led in the case of pub­lick rising in Armes.

The fourth Argument is, that the civil Law admits forfeiture in absence, in the case of Perduellion (for so the common Law names that kind of Treason which is committed against the Prince, or State) and our Criminal Law being founded upon the Civil Law, ought in this, as in most other cases, to be squared by it. To which my answer is, that there is no warrand for that assertion from the Law of the Romans; for, by that Law, bona tantum annotabantur, as hath been said, in place whereof, banna hodie locum obtinent, which is equivalent to our Denun­ciations. But because citations of the Civil Law, would re­semble pedantry too much, I shall recommend to such as doubt this, the 16. verse, 25. Chap. of the Acts, where Festus, a great Roman Lawyer, sure, (as all their Presidents of the Provinces were) tells us, That it is not the manner of the Romans to de­liver any man to die, before he who is the accused, have the ac­cuser face to face, and be heard to defend himself concerning the crime laid against him. I confesse, that forfeiture in absence is allowed per extravag. Henrici septimi (and it is well called an extravagant Constitution) but that is accompted no part of the civil Law, and if we follow its model, we ought to allow forfeiture in absence in all points of Treason, as this doth; and even that Constitution acknowledges, that this was not al­lowed by the Romans, and if it had, this Constitution had been unnecessar, as it is now unreasonable. And I remember, that App. Alex. in his third Book of the civil Warrs, relates an eloquent Harrangue made by Lucius Piso, in favous of [Page 171] Antonius, maintaining, that no person who is absent could be condemned, though upon probation, which was accordingly found by the Roman Senate. And though our Parliaments use to proceed against absents, in case of Treason; yet, that is so seldom, and solemnly done, that there is little hazard to the Pannals, and every man hath still some friends in so great a number, who may defend him; nor is it probable that the Parliament, who are the great Curators of the Common-wealth, and who are so much entrusted by us, as to have reposed upon them the Legislative Power, will prejudge any privat party; remembering it may be their case one day, which is now the Pannals: and that being a supream Court, is not stinted to follow a probation which is suspect, though privat Assizers might, for fear of an Assize of error; which makes a vast difference and disparity of reason.

Let us then (My Lord) consult, the interest of our Posteri­ty, which is a generous kind of self-defence: for the Italian proverb observes well, that it is better to live in Countries which are barren, then in Countries where there are rigid Laws. Let us guard against what is cruel, as we wish what is just; and let us lawfully be carefull now of these our Lives; and For­tunes, of which we have been too often unnecessarily anxious. God himself would not condemne Adam, till he heard him, and though he knew the sins of Sodom, and Gomorrah, he would not pronunce sentence against them, till he went down and saw their abominations. Let us not then make snares in place of Laws, and whilest we study only to punish such as are Traitors, let us not hazard the Innocence of such as are Loyal Subjects.

The learned reasons adduc'd for this Overture, and the opinion of the Session, prevail'd against this Discourse; and the Parlia­ment did ordain, that absents might be proceeded against in the Justice-court, for publick rising in Armes.

For the late Marquess of Argyl, immediatly before his Case was advised.
XV. PLEADING. Whether passive complyance in publick Rebellions, be punishable as Treason.

My Lord Chancellor,

I Wish it may be the last misfortune of my Noble Client, that he should be now abandoned to the patronage of so weak a Pleader as I am, whose unripenesse both in years and experience, may, and will take from me that confidence, and from your Lordships that respect, which were requisit in an Affair of this import. In our former Debate, which is now closed, we contended from the principles of strict and municipal Law: but here I shall endeavour to perswade your Lordships, from the principles of equity, reason, conveniency and the custom of Nations; which is the more proper way of Debate before a Parliament, who make Laws, but are not tyed by them, and who in making Laws, consider what is fit and equitable, and then ordain what shall be Law and Justice; and if your Lordships consider strict Law in this case, it were in vain for the loyalest Subjects, who liv'd in these three King­doms during those late confusions and rebellions, to defend [Page 173] his own actions by that rule: for, since intercommuning with Traitors, concealing of Treason, and acknowledging their Au­thority, are by strict Law, in regular times, undenyable Acts of Treason, I am no more to debate abstractly my Clients Innocence as to these, for who amongst us did not share in that guilt? All did pay Sesse, all did raise Summonds in the Pro­tectors name, we were all forc'd to be the idle witnesses of their Treasons; and therefore, I shall only contend, that in such irregular times as these were, wherein Law it self was banisht with our Prince, meer compliance can amount to no crime in him, and that as to this he lyes under no singular guilt; Espe­cially, seing His Majesty has, by a Letter under His Royal Hand, declar'd, that he will not have His Advocat insist against him, for what was done by him, or any els, preceeding the year, 1651. (in which time he was only an eminent Actor) having retired himself from all publick imployments under Cromwels Usurpation, being known for nothing all that time, but a sufferer, and being forc'd by self preservation to do those things for which he is now accused, which being undeny­ably acknowledged by all the Nation, cannot but recommend these few particulars, which I am now to offer for him.

Complyance (as the very word imports) is only a passive connivance, Et praesupponit crimen in suo esse hactenus con­stitutum; and in Law, when a multitude offend (as in our case) the contrivers, and such as were most active, are, and should only be punish'd, detrahendum est seve­ritati ubi multorum hominum strages jacet: and therefore, this Noble Person being acknowledged to be none of the first plotters, nor having been singular amongst that vast multitude of complyers, cannot be brought in amongst such as ought to be punished. For, albeit where many may commit a crime, there the multitude of offenders should highten the punishment; yet, where the crime is already com­mited collectively by a multitude, there the number of [Page 174] offenders takes off the guilt, and in such cases, none should be punished (saith Aflictus) but in flagranti & recenti crimine (or with rid hand, as our Law terms it) dum durat crimen, nec sine quorundam nece extingui potest seditio, or where the re­newing of the crime is justly to be feared; for punishments being of their own nature inflicted, not for what is past (seing that cannot be remeeded) but for example in the future, certainly where the rebellion is extinguished, and needs no more be feared, as in our case, (God be praised) it were cruelty to punish ordinar complyers. It is remarkable, that in the 13. 14. 15. Acts of the 5. Parliament of Queen Mary, such Scots-men as did ride with English-men, even where her Ma­jesties Authority stood in its integrity, are ordain'd only to be lyable for what skaith they did to Scots men who served the Country, and that they being charged, to leave assurance with English-men, and disobeying, should have no action againg true Scots-men for any wrong done to them.

If then such lenity was us'd, and such commiseration extend­ed, to such as were involved in a publick opposition to law­full and standing Authority, and in a compliance with the Eng­lish, who were at that time, born and sworn enemies both to this Crown, and Countrey; what may such expect as com­plyed only when no visible Authority was able to protect such, who were forc'd to comply, not out of any design to defend Usurpation, but rather out of a design to preserve themselves for doing His Majesty furder service? And as in the Body-natu­ral, the ordinar rules of Physick take no place, when there is a violent and universal conflagration of Humors; so the ordinar rules of Law should have as little place in the Body-politick, when a whole Nation have run themselves head-long into a common distraction. To which purpose I cannot but represent to your Lordship, that excellent Law, made in the Reign of Henry the seventh of England, and with consent of that ex­cellent Prince, wherein it was enacted, That no Subject should [Page 175] be guilty of Treason, for obeying one who was called King, though known to be an Usurper, because the people do there not rebell, but submit.

Necessity may likewise be adduc'd for extenuating this com­plyance, which is therefore said to have no Law, because it is punished by none; without complying at that time, no man could entertain his dear Wife, or sweet Children, this only kept men from starving, by it only men could preserve their ancient Estates, and satisfie their Debts, which in honour and conscience they were bound to pay, and without it, so emi­nent a Person as the Marquess of Argyl, and so much eyed by these rebells, could not otherwise secure his life against the snares were dayly laid for it; and so this complyance did in effect resolve in a self-defence, which inculpata tutela, seing it can exempt a man from murder, and these other crimes that are contrair to the Law of Nature, it should much more defend against the crime of Treason, which is only punished, because it is destructive to the government of our Superiours, and Statutes of our Country; and since crimes are only punishable, because they destroy Society and Commerce, how can this complyance be punished, which was necessar for both these?

Mans will is naturally so frail, and man because of that frailty so miserable a creature, that to punish even where his will is straight, were to add affliction to the afflicted, the want of this will defend mad men against paricide, and the degrees of this di­stinguisheth slaughter from murder; and in the Acts of Parlia­ment whereupon the Lybel as to compliance is founded, it is re­quisite, that the compliance be voluntar, thus in the 37 Act, 2. Parliament, Ia. 1. It is statute, that no man will [...]ully receipt Re­bels, and by the 205. Act, 14. Par. Ia. 6. these who apprehend not such as mis-represent the King, are as guilty as the Leasing-makers, if it be in their power to apprehend them, as the Act very well adds. Likeas, by the 144. Act, 12. Par. Ia. 6. The Lieges are only Prohibited to intercommune with such Trai­tors [Page 176] as they might crub; for that Act, as it forbids all Com­merce with Rebels, So it commands all the Subjects to adver­tise His Majesty of their Residence, and to apprehend them; whereby it is clear, that this last Act is only to have Vigour, when the Authority of the Soveraign stands in force, & per argumentum à contrario sensu, seems to excuse such as submit to Traitors, when there is either nothing to be advertised, or when Advertisments of that nature, are either imprestable, or at least unprofitable, as in our late troubles, at which time, the re­sidence of these Rebels was notour, and all correspondence be­twixt the King and His People, was daily betrayed and inter­cepted. Consonant to which, is that excellent Law, l. 2. ff: de Receptatoribus, where it is said, that Ideo puniuntur re­ceptatores, quia cum apprehendere potuerunt dimiserunt: and Bald. ad l. delictis, ff. de noxal. act. is most expresse, that receptans rebelles, non voluntarie, sed coacte, quia sunt plures re­belles simul: & eos expellere non potest sine suo periculo, non pu­nitur aliqua paena. Thus likewise in the Statutes of King Wil­liam, cap. 7 §. 2. it is said, Pro posse suo malefactores ad justi­tiam adducent, & pro posse suo Justitiarios terrae manu tenebunt. And §. 5. it is ordain'd, Quod magistratus pro posse suo auxiliantes erunt domino regiad inquirendum malefactores, & ad vindictam de illis capiendam. By all which it is clear, that not only should complyance be voluntar before it be criminal, but that likewise it must be a complyance against lawfull Authority, able to protect such as revolt from it. I remember in anno, 1635.James Gordoun being challenged for corresponding with Alexander Leith, and Nathaniel Gordoun, declared Traitors for burning the House of Frendraught, they were assoylzied, because the intercommuning challenged was not lybell'd to have been-voluntar, and there­after the Assize who assoilzied them, having been pursued for wilfull error for absolving as said is, they were likewise absolved from that Process of error, in the which Process, that same argu­ment was urg'd, but not so strong in point of fact as in our case; [Page 177] and because the design is that which differences the actions of men (propositum crimina distinguit) and seing designs being the hid acts of the mind, are only guessed at by the concomitant and exterior circumstances, I shall only intreat your Lordship to consider these few presumptions, which being joyned, may in my apprehension, vindicat this Noble Person from the design of voluntar complyance. 1. He is descended from a stock of of Predecessors, whose blood hath prescribed by an immemorial possession, the title of eminent Loyalty, and that same Law which presumes, that the blood and posterity of Traitors is infected with a desire to revenge the just death of their Pre­decessors, and an inclination to propagate their crimes, doth likewise presume Loyalty and a desire to be thankfull, in the the children of such as have received great favours, and per­formed great services, to such as have been the Benefactors. 2. These with whom he is said to comply, were known and avowed enemies to Nobility, had quite exterminated in England, and begun to exterminat in Scotland, all memory of Nobility, and badges of Honour; so that in this complyance, he must be thought to have plotted against his own interest: nor can I see what advantage he could expect from a Common-weath, which valued, nor preferr'd none but Souldiers, a Trade, which suited neither with his breeding, nor years. 3. They were enemies to Presbyterian Government, of which he has alwayes shewed himself so tenacious, and of all Governments they did most abominat that one, for which he had exposed himself to so many hazards. 4. That Usurper had never oblieged him neither by reward, nor complement. 5. He was sworn their enemy both in Parliament and Councel, and charity as well as Law, presumes against perjury. 6. He was pursued by them most unjustly, both at Councel of War, and elsewhere, and was known to have been hated extreamly by their Commander in chief, for complyance with whom he is now challenged: By all which it is most improbable, that his Lordship would have [Page 178] linked himself with that abominable crew of miscreants, by whom he might losse much, but gain nothing.

His Majesty hath recommended this case to be judg'd by your Lordships, whom He knew the iniquity of these times did (though without any cordial assent) involve in the same guilt, and albeit it were a guilt, there will be hardly any found to cast the first Stone at him; and His Majesty hath not delivered him up to be proceeded against, till by His Act of Indempnity (grant­ed even to such as were eminently engaged in the contrivance and execution of the most horrid plots, that were perpetrat against him) He had first cast a copy to your Lordships of that meek pro­cedure which he allowes, and not till he had (even notwithstand­ing of their compliance) preferr'd some to be Councellours, some to Titles of Honour, and many to employments of great Trust. And were it not unjust, that he should suffer for acts of Frailty; when the Ring-leaders, and malicious plotters pass unpunished? And were it not unkindness to our Countrey, to have it thought that we had Subjects who deserved worse, then Lambert, Lintil, and others? I shall to all this add, that the guilt charg'd upon this Noble Person, is such as was thought prudence in those who were most Loyal, and this complyance was so customary, and so universal, that it was thought no more a Crime, then the living in Scotland was Criminal: whereas in Law, qui sequitur comu­nem errorem, non delinquit, & consuetudo facit actum de sua na­tur a punibilem impunibilem, & excusat à paena ordinaria, & extra­ordinaria, Farin, Quest. 85. de pen. temperandis. Custom is a second Nature, and example a second Law, and he who obeys them, obeys quasi legem naturae, & patriae: and in all civil Wars and uproars, especially where such have lasted for a considerable time, as in Portugal, France, Germany, &c. none have been punished for mingling with the multitude, if they did not per­vert them. And if we consult the Ancients, when justice and equity were not yet opprest by interest, and design, we will find, that Julian the Emperor having only punished the chief [Page 179] rebells, residui omnes abierunt innoxii, quos in certaminum rabiem necessitas aegerat, non voluntas. And Themistius praises Valens the Emperor, because non paena dignos existimavit, qui bellum non suaserunt, sed qui abrepti sunt à morum impetu, & qui succubuerunt ei qui jam rerum potiri videbatur. And Joseph. lib. 5. tells us, that in such universal rebellions, Titus used only to punish the ring-leaders, unum criminis ducem puniebat reipsa, multitudinem vero, sola verborum increpatione, seditionum conci­tatores, & duces factionum dicuntur, l. 16. ff. quando appell.

It is likewise universally received by the Law of Nations, that such as submit after universal rebellions, either upon con­ditions, or who put themselves in the mercy of their Magistrats, (as Grotius doth most wisely observe, lib. 3. cap. 11.) are still secure, and therefore, since the Marquess did immediatly upon His Majesties return, go to Court, to attend His Majesty amongst his other loyal Subjects, judging from the dictats of his own conscience, that he was in the same case with your Lordships his present Judges, it were strange that he should fall, when others are in great multitudes pardoned, who fled out of a consciousness to their own guilt, especially since he offered to prove, that he testified to many hundreds during His Maje­sties absence, a deep sense of that misfortune, and an absolute aversion from that present Usurpation; and that he assisted His Majesties friends, both with money and advice: And who would think, that in equity he ought to dye, by these whom he wish'd restor'd, and for which restoration, he prayed daily in his Family; and die for complying with those, whose ruine he beg'd daily upon his knees? And though he did not joyn with some who were Commissionated by His Majesty, yet that proceeded not in him, more then in others, from any unkindnesse to the Cause which he alwayes allowed, as can be prov'd both by themselves and others, but from a perswasion he had, that such courses as they took, would ruine the design which was proposed; and [Page 180] any thing he did in opposition to them, was to defend himself and his poor Countrey, against injuries, which were designed against him upon privat quarrels, as he still offered to prove. If we consider that same interest of Nations, for which Treason is punishable, we will find it unfit to punish ordinar complyers after a tumult is quieted; for if every man that were involv'd in the guilt, did think that he were punishable, all would be forc'd pertinaciously to continue the rebellion they had begun, and to expect from successe only, that impunity which the Law denyed: and thus your Lordships should make all future re­bellions to be both cruel, and perpetual.

I come now to the Probation adduced by His Majesties Ad­vocat, for proving this compliance, and in order thereto, I shall lay before your Lordships these following considerations; 1. That the weaker the Relevancy is, the Probation should be proportio­nably the stronger, gravatus in uno, levandus in alio. 2. That in Criminals, Probation should be very convincing. 3. The more illustrious the Pannel is, the proof should be so much the more pungent, because the Law presumes Noble Persons less inclin'd to commit Crimes then others. 4. Where there is no penury of Witnesses, probation should be so much the clearer, because the Law presumes that all is known, which can be known: but so it is in this case, sixty Witnesses have been led (albeit our Law allowes only 25 in Criminals) and a long time hath been taken, and many invitations given to all persons, in all corners, to come and depone, and it is believed by most of these silly persons, that it will be most acceptable to His Majesty, and may procure a reward to themselves, that they depone against his Lordship; which remembers me of these slaves in Juvenal, who at Sejanus fall, invited one another to offer Indignities to his dead body, Dum jacet in ripa calcemus Caesaris hostem. 5. The Law requires in these attrocious Crimes, witnesses omni excep­tioni majores, and these are in Law expon'd to be such as the jea­loufie [Page 181] of the greatest enemy needs not suspect; whereas most of all the Witnesses adduced, are either the servants of such as have been debarred themselves from witnessing, for fear of partia­lity, or the Usurpers Souldiers, who have so oft foresworn solemnly their alledgeance to their Prince, that no Judge can rely upon their depositions; for it is presumable, that semel perju­rus, will be semper perjurus: and albeit His Majesty, by His In­dempnity, hath vail'd their Crimes, yet He hath not taken them away, as is clear, per [...]. ffin. C. de generali abolitione; the ex­cellent words run thus, Indulgentia (Patres conscripti) quos liberat, not at, nec infamiam criminis toll it, sed paenae gratiam facit; whence I argue, that infamous persons cannot be Witnesses, but so it is, that perjured persons (non abstante amnestia & remissione) are infamous by the foresaid Law; the Criminal Registers like­wise tells us, that one who had been condemned for forging of false Writes, was refused to be received as a Witness in Fren­draughts Process, albeit he had obtained a Remission; and cer­tainly, Perjury in the crime of Treason (whereof these Soudiers are guilty) is a more odious Crime, then that of forging of false Writes. 6. I hope your Lordships will consider, that most of what these Witnesses have deponed, are Speeches, which the best of men may have forgot, after so long a time, and in a time when both men and manners have been much confounded, by the strangeness and number of interveening accidents: most of these Witnesses have deponed upon that which fell under sense, and so have acted rather the parts of Judges, then Witnesses. Thus some depones, that the Marquess's Boats did bring the English up Lochfine, and that they could not have got up without his as­sistance, which last part, as it is negative, so is an act of the judge­ment, and not the object of any exterior sense, and they presume they had an order from the Marquess, because else they durst not have gone, and is not this to imagine, and not to depone? 7. Most of them are persons, whom the D [...]ttay acknowledged to [Page 182] have been wronged by the Marquess; most of these poor per­sons who have deponed, were to my certain knowledge, so con­founded by appearing before a Parliament, and by interroga­tors, that they scarce knew what to answer. 8. Not any two of these numerous Witnesses concurr in their depositions, all vary, and most do clash, and are either Vaccillantes, or Sin­gulares; neither can the deposition of one Witnesse, as to one particular circumstance of a Crime, and the deposition of ano­ther as to another, be joyn'd for making up a clear Probation, for there the Judge is certified of neither of these circumstances, see­ing one Witness is none, whereas proving witnesses should be con­testes; and if a Pannel were accused of moe Crimes in one Lybel, the deposition of one Witness to prove one, and of another to prove another of these Crimes, would not prove the Lybel; so neither can the singular deposition of two witnesses upon dif­ferent points, prove one crime. Such spelling is not lawfull in probation, and this is that which the Doctors call singulari­tas diversificativa, which in Law hinders conjunction in pro­bationibus, as well as singularitas obstitativa, Alexand. consil. 13. Hippol. in sua praxi, §. diligenter num. 149. Farin. tract. de oppos. contradicta. testium. 9. The Law makes a difference, as to the probation betwixt Perduellion, or open Treason, in which they require most convincing probation, and in conspiracies or occult crimes, in which the rigour of pro­bation is remitted, because the possibility of proving is much restricted, in respect of the clandestinesse wherewith such Conspirations are managed; and therefore, seing in this case the acts to be prov'd were committed publickly, such as joyn­ing in open hostility with the Usurpers, assisting at their Proclamations, levying Forces against His Majesties Ge­nerals; Certainly the probation should be most illative of what is alledged, and the provers should be omni exceptione majores. I must tell you my Lords, that some have been so [Page 183] unjust to you, as to fear, that though the probation be not concluding, that yet ye will believe, to the great disadvantage of my Noble Client, the unsure deposition of that as foul, as wyde-mouthed witnesse, publick brute and common fame, which as it is more unstable then water, so like water it represents the straightest objects as crooked to our sense; and that others of you retain still some of the old prejudices which our civil and intestine discords, did raise in you against him, during these late troubles: but I hope, generosity and conscience will easily restrain such unwarrantable principles, in persons who are by Birth, or Election, worthy to be supream Judges of the Kingdom of Scotland. It is unmanly to destroy your enemy unarmed, but unchristian when you represent GOD as Judges; for then you endeavour to make him a murderer; and in my judgment, he revenges himself but meanly, who to ruine his enemy, destroyes his own Soul, and tashes his Honour.

My Lords, as Law oblieges you to absolve this noble Person, so your interest should perswade you to it. What is now in­tented against him, may be intended against you; and your Sentence will make that a crime in all complyers, which was be­fore but an error and a frailty; your Royal Master may with our Saviour then say to you, Thou cruel servant, I will condemn thee out of thine own mouth: Or, if your Lordships be pardon'd, he may say to you as his Master said to the other, Sure I did pardon thee, why wast thou so cruel to thy fellow servant? But, not only may this prove a snare to your Lordships, but to your Posterity. Who in this Kingdom can sleep securely this night, if this Noble Person be condemned for a complyance, since the Act of Indempnity is not yet past? And albeit His Majesties clemency be unparallel'd, yet it is hard to have our Lives hung at a may-be, and whilst we have a Sentence-condemnator standing against us. Phalaris was burnt in his own Bull: and it is re­markable, that he who first brought in the Maiden, did himself suffer by it.

[Page 184] I do therefore humbly beg, that since this Process was in­tented upon Informations given to His Majesty, of the Marquess's being very extraordinarily active for the Usurpers, that your Lordships would transmit the Process as it now stands to His Majesty, that thereby he may have a fair occasion to give a ge­nerous testimony of his clemency, that the people may be se­cured against all jealousies and fears, and that your Lordships may be rescued from so invidious a tryal.

For Maevia, accused of Witchcraft.

I Am not of their opinion, who deny that there are Witches, though I think them not numerous; and though I believe that some are suffer'd by providence, to the end that the being of Spirits may not be deny'd; Yet I cannot think, that our Saviour, who came to dispossesse the devil, who wrought moe Miracles in his own time, upon possest persons, then upon any else, at whose first appearances the oracles grew dumb, and all the devils forsook their temples; and who promised, John 12. that the Princes of this World was now to be cast out, would yet suffer him to reign like a Soveraign, as our fabulous representations would now perswade us.

This person for whom I appear, stands endicted as a Witch, upon several Articles, the first whereof is, that she did lay on a Disease upon A. B. by using a Charm. 2. That she took it off by another. 3. That it is deponed by two penitent Witches, that she and they did flee as Doves to the meeting place of Witches.

[Page 186] As to the imposing or taking off diseases by Charmes, I con­ceive it is undenyable, that there are many diseases whereof the Cures, as well as the Causes, are unknown to us; Nature is very subtile in its operations, and we very ignorant in our inquiries; from the conjuncti [...]n of which two, arises the many errors and mistakes, we commit in our reflections upon the productions of nature: to differ then from one another, be­cause of these errors, is sufferable, though to be regrated; but to kill one another, because we cannot comprehend the reason of what each other do, is the effect of a terrible distracti­on; and if this were allow'd, the most Learned should still be in greatest danger, because they do oftimes find mysteries which astonish the ignorant; and this should give occasion to the Learned to forbear deep searches into natural mysteries, lest they should loss their life in gaining knowledge, and to persecute one another: for every Physitian or Mathematician, who is emulous of another, but cannot comprehend what his rival doth, would immediatly make him passe for a Wizard. It is natural for men to think that to be above the reach of Nature, which is above theirs. If this principle had taken place amongst our predecessors, who durst have us'd the Adamant? For certainly, nothing looks liker a Charm, or Spell, then to see a Stone draw Iron; and men are become now so wise, as to laugh at these who burnt a Bishop, for alledging the World was round, so blind and cruel a thing is ignorance: And if this principle, of believing nothing whereof we do not see a cause, were admitted, we may come to doubt, whether the curing of the Kings Evil by the touch of a Monarch, may not be likewise called charming. This then being generally pre­mised, to curb the over-forwardnesse of m [...]nkind,

It is alledged, that the Lybel is not relevant, in so far as it is founded upon my Clients having threatned to do her neigh­bour an evil turn, that she went in to her house, and whispered something into her ear, whereupon she immediatly distracted: [Page 187] for, though threatning, when mischief followes, hath been too much laid weight upon by us, yet the Law hath required, that many particulars should concurre, ere this be sustained, as that the person who threatned did ordinarily use to threaten, and that mischief constantly followed her threatnings, minae ejus quae Jolita est minas exequi, that these threatnings appeared rather to be the product of a settled revenge, then of a boiling and airie choller, which doth oftimes, especially in women, occasion very inconsiderat extravagancies. 2. It is required, that the threatnings were specifick, as if she had promised that she should cause her distract, and the distraction accordingly followed: but it were too lax, to ascribe every accident to a general threatning, as is clear by Dallrio, lib. 5. sect. 3. Lawyers likewise consider, if the occasion of the quarrel was so great, as might have provockt to so a cruel a revenge as that which was taken; whereas here the occasion was very mean, not ex­ceeding two pence. And though all these do concurre, yet Farin. Quaest. 5. num. 37. acknowledges, that these are not sufficient to infer the crime of Witchcraft, but only to load the person accused with a severe presumption, or to infer an arbitrary punishment; and in the Process against Katharine Oswald, the 11. of November, 1629. those threatnings, though the effect followed, were not found sufficient to infer Witch­craft, but only to be punishable tanquam crimen in suo genere, that is to say, as an unallowable and scandalous kind of rail­ing.

The second defence against this Article is, that it is not re­levant to Lybel, that the malefice was occasioned by my Client, except it were condescended by what means it was occasioned; for in Law, when I am said to have produced any effect, there must be a necessary contingency shewed betwixt what I did, and what followed, for else, the very looking upon her might have been said to have been a cause, and when si k­nesses are alledged to have been occasioned by Witches, the or­dinar [Page 188] signs given, are, that the disease be in it self such as can­not be occasioned by nature, as the vomiting up of nailes, glasses, and other extraordinar things; that the person male­ficiat do go in an instant, from one extremity to another; as from being extreamly weak, to be immediatly extreamly strong; or use extraordinar motions, which cannot be occasioned by Nature, as D. Autum. in his discourse of Witchcraft doth most learnedly observe. But so it is, that neither of those can be observed here; for distraction is a very natural disease, and has oftimes fallen upon a man in an instant, especially upon an excesse of fear; and who knows, but this Woman, who by her Sex and Humour, is known to be very fearfull, might have been so surprized at my Clients coming into her, after the threatning, that this excesse of fear might have thrown her into that distraction, under which she now labours; and yet my Client might have had no influence upon her as the cause, but as the occasion only of this her distemper.

All conclusions in criminal cases should be very clearly in­ferr'd, since the crime is so improbable, and the conclusion so se­vere. And therefore, Lawyers are of opinion, that if the inferences be not demonstrative, and undenyable, conclusio semper debet se­qui debiliorem partem, that which but may be, may not be, and Lawyers do constantly conclude, that we must only conclude that [...]n crimes to have been done, which could not but have been done. And who can say, that necessarily this was done by her here, which could not but occasion this Distaction, and therefore, Perkins, cap. 6. do's assert, that no malefice can be a sufficient ground to condemn a Witch, except she either confess, o [...] that it be proven by two famous Witnesses, that she used means that might have produc'd that effect. And though where Charms and other means expressly discharg'd are used, these unlawful means are by the Judge repute, as if these means might have been effectual, in odium illiciti, and that the users have only themselves to blame in that case, who would use these [Page 189] Charms, Spells, and Incantations, of which the Law is jealous: yet where none of these are used, but a simple whisper, the ef­fect in that case cannot be said to have flow'd from it, nor do's any severe presumption lye against a thing that is ordinar. And Bodin. lib. 4. concludes, that in capitali judicio ex praesumpti onibus veneficas non esse condemnandas [...], ut si sagae deprehen­dantur egredientes ex ovili cum ossibus, bufonibus, vel aliis instrumentis magicis instructae licet oves statim moriantur. All conclusions must be necessar or presumptive; but so it is, that this conclusion is not necessar, since all these remedies might have been used, and yet the user might have been innocent: for, a necessar conclusion is à qua veritas abesse non p [...]test; and if this inference be only presumptive, it is as undenyable, that Witchcraft cannot be inferr'd from such a presumptive con­clusion, as is clear by Farin. quaest. 36. num. 11. Perkins, Bodin and others above-cited: and if it were otherwise, Judges might condemn upon guessing or malice, and so moe would be in danger to die by injustice, then by Witchcraft; and may you not as well punish such as stay bleeding by applying a Stone, or who prevent abortions by gliding the woman with a Belt, now much in fashon? And therefore it is very remarkable, that by the 73. Act, 9. Par. Queen Mary, Witchcraft, Sor­cery, Negromancy, and sicklike arts for abusing the people, are only forbiden; nor can it be subsumed that any Art, or exterior thing, whereby people use to be abused, were here used, and therefore this Article cannot be said to fall under the prohibiti­on of the Act of Parliament.

The second Article is, that my Client did cure the said per­son whom she had formerly distracted, by [...]pplying a Plantane leaf to the left side of her head; and binding a Paper to her Wrest, upon which was write the name of Jesus. Which be­ing done by her who was an ignorant person, being done to the person who formerly distracted upon her whisper, and the Cure being perfected in lesse time, then Nature uses to take for [Page 190] composing such gerneral and horrid distempers, might ne­cessarily infer, that this Cure was performed by Witchcraft.

Against which Article, it is alledged, that the conclusion here should demonstrat, that necessarily this cure was performed by no natural cause, whereas the mean here used, viz. the applying of a Plantane leaf, is a natural thing, and may cure in a natural way, it being known that there is nothing so cold as a Plantane leaf, and so it might have been very fit for cur­ing a distraction, which is the most malignant and burning of all feaverish distempers. Or who knows, but that this distraction having been occasioned by the excessive fear she had of my Clients revenge, but that how soon she was reconciled to her, and that she had by the same strength of fancy which made her sick, conceived that she would likewise restore her against that sicknesse, her distraction might have abaited with her fear? 2. The Law-givers having punished crimes, because these crimes are destructive to their Subjects, and Common-wealth, have for the same reason only punished such indifferent inchantments, as did either kill men, or ensnare them to unlawfull lusts, but not those Arts, where the health of man and the fruits of the ground were secured, against diseases and tempests, as is clear, Per l. 4. Cod. de Malef. & Math. Eorum est scientia punienda, & severissimis merito legibus vindicanda, qui magicis accincti artibus, aut contra hominum moliti salutem, aut pudicos ad li­bidinem delexisse animos detegentur, nullis vero criminationibus implicanda sunt remedia, humanis quesita corporibus, aut aggrestibus locis, ne Maturis vindemiis metuerentur imbres, aut ventis grandinisque lapidatione quaterentur: innocenter adhibita suffragia, quibus unius cujusque salus, aut existimatio lederetur, sed quorum proficerent actus, ne divina munera & labores hominum sternerentur. Which Law being a Statute made by Constantine, who was a Christian Emperor, being conceived in so devote terms, and insert by Justinian, who was a most Christian Prince, amongst his own Laws, cannot but be a [Page 191] Law very [...]it to be observed in a Christian Common-wealth. And though it be allegded, that this Constitution was abrogat by Leo, nov. 65. yet, it is very remarkable, that this Con­stitution made by Leo, is not insert in the Basilicks, so that it seems it has been thereafter abrogated.

It is not probable, that the Devil, who is a constant enemy to mankind, would employ himself for their advantage; and the Name of Jesus being used, so much respect ought to be had to it, that the user should not be punished with death, except it could be clearly proved otherwise, that she had received this Charm from the Devil; in which case, the Author, and not the thing, occasions the punishment, or else, if she had been dis­charged by the Church, or any Judicatory, to use that Cure, as that which was in it self dangerous; but to burn a poor ig­norant woman, who knew not that to be evil which she used, were to make ignorance become Witch-craft, and our selves more criminal, then the person we would condemn. And all these Laws and Citations which can be brought to prove, that magical Incantations are punishable by death, though imployed for the well-fare of mankind, must be interpret so, as to relate only to some of these unlawful cases above related. And I admire, that those who inveigh so much against this Constitu­tion of Constantine, have never taken notice, that these Charms are only allowed, even for the wellfare of man and beast, ubi sunt innocenter adhibita suffragia, where devotion was used, though erroniously, as in this case. And we know, that a whole Family in Spain pretend to be able to cure Diseases by the toutch, as being descended from St. Katharine, and are therefore called, Saludadores; and that another Family in France, who alledge they are descended from St Hubert, do cure such as are bitten by mad Dogs, and yet neither of these are punished by any Law, since they ascribe their Cures to Devotion: And there are but few men who have travelled any where, but use some Charm or other, out of innocence or railery; and to burn these, or the [Page 192] common people, who think they may follow their example, were an act of great cruelty. And since the Cross is allowed by the Canonists to be applyed to any part of the body, per c. non licet. 26. quaest. I see not why the Name of Jesus may not be applyed, in the same way: Nor can I think that the Devil would allow the using of that sacred Name at which he is forc'd to tremble, and by the very naming whereof, all Eccle­siastick Histories tell us, that the Devil has been dispossest, and therefore, Ghirland. de sortil. num. 23. gives it as a general rule, that ubi alia nomina ignota ultra Dei nomina inveniuntur, tunc superstitiosa dici possunt & ita puniri. Cassiodorus relates, that multis efficax remedium fuit, trina recitatio versiculi, Psal. 115. dirupisti vincula mea, &c. and Bartholinus in his Anatomy, defends, that these Verses repeated with a loud voice in the ear of one affected with the Epilepsie, will cure him,

Gaspar fert mirham, thus Melchior, Balthasar aurum,
Haec tria. qui secum portabit nomina regum,
Solvitur à morbo, Christi pietate caduco.

And though some have disallowed even pious Sentences, or Names, when joyned to superstitious circumstances, as when they are only to be writ upon Parchment, and cut too in such a figure, or bound by so many threeds only, yet to condemn the users as Witches, when they are used simply, as here, seems to be the other extream.

In things that are abstruse and dubious, the Law should still favour that which tends to the good of the Common-wealth: yea, and though it sometimes may punish Charms, when used to the disadvantage of men, though it know them not certainly to be unlawfull; yet, it doth not follow, that it should punish that which may tend to their advantage, except they know it to be certainly unlawfull. And though our Act of Parliament punishes such as seek help by unlawfull meanes of Sorcerers, or Necromancers, yet they must first be prov'd [Page 193] to be Sorcerers, or Necromancers, who make a trade of abusing the people, as that Statute sayes, which cannot be drawn at all to a dubious Cure used in one case, and by the application of natural means; and therefore, though Drummond was burnt as a Witch, albeit he had never committed any malefice, but had only cured such as were diseased, yet having in a long habit and tract of time, abused the people, and used Spells and Incantations, which had no relation at all to Devotion; and having continued that trade, albeit he was expresly discharged, his case was very far different from this, and deserved a far more severe punishment. The same may be likewise answered to the condemnatory Sentence pronunced against John Burgh, who was convicted of Witchcraft in anno, 1643. for pretending to cure all diseases, by throwing into water an unequal number of pieces of Mony, and sprinkling the patients with the water; so that it may be justly said, that these died rather for being publick cheats & falsarii, then for being Witches, & venefici. Upon which account ars Pauliana also is punishable, by which some Cheats pretend to cure diseases, by Spells and pious Characters, revealed (as they pretend) to S. Paul, when he was carryed up to the third heavens; for, here the foundation makes the cures known to be cheats.

I might likewise alledge here, that it is against the confest principles of all Criminal [...]sts, that una venefica non potest esse ligans & solvens in eodem morbo, cannot both put on, and take off a disease; for, it seems that the Devil thinks, that it were too much to bestow such favours upon one of his favourits, so that he is juster then those, who affect plurality of Benefices; or else he thinks it would lessen too much the esteem of those faculties, if one could exerce both; or else it is not probable, that she who had the malice to lay on the disease, would con­descend to serve in the taking it off. But however, I find much weight hath been laid upon this principle, by those who did debate Margaret Hutchesons Process, and so let it have its weight.

[Page 194] The third Article of my Clients endictment is, that it is de­poned by two dying and penitent Witches; that she flew like a Dove with them to their meeting places.

This Article seems to me very ridiculous; for I might de­bate, that the Devil cannot carry Witches bodily, as Luther, Melanchton, Alciat, Vairus and others assert, because it is not pro­bable, that God would allow him the permission constantly to work this miracle, in carrying persons to a publick place, where they joyn in blaspheming His Name, and scorning His Church. Nor is it proper either, to the nature of heavy Bodies to flee in the air, nor to Devils who are spirits, and have no armes, nor other means of carrying their Bodies: but I may confidently assert, that he cannot transform a woman into the shape of a Dove, that being impossible; for how can the Soul of Wo­man inform and actuat the body of a Dove, these requiring diverse Organs, and administrations; and to believe such trans­mutations, is expresly declared Heresie by the Canon Law, and to deserve excommunication, cap. Episcopi, 26. quaest. 5. and is con­demned by St. Augustin, lib. 18. de civit. Dei, delrio lib. 2. quest. 18. Girland. §. 7. and though the Scripture tells us, that Nebu­chadnazor was transformed from a man to a beast by God, yet it follows not that the Devil hath that power; or as some Di­vines assert, he did but walk, feed, and cry like a beast, and had brutish thoughts.

We must then conclude, that these confessions of Witches, who affirm, that they have been transformed into beasts, is but an illusion of the fancy, wrought by the Devil upon their melan­choly brains, whilst they sleep; and this we may the rather believe, because it hath been oft seen, that some of these con­fessors were seen to be lying still in the room when they awak'd, and told where, and in what shapes they had travell'd many miles: Nor is this illusion impossible to be effectu [...]t­ed by the Devil, who can imitate nature, and corrupt the humours, since melancholly doth ordinarily perswade [Page 195] men, that they are Wolves (Licanthropi) Dogs, and other Beasts.

Since then these confessions are but the effects of melancho­ly, it follows necessarily, that the depositions of these two Witches amounts to no more, but that they dreamed that my Client was there: and were it not a horrid thing, to condemn innocent persons upon meer dreams, as is concluded by Frans, Ponzan. tract, de lamiis. cap. 1. num. 52. Sunt illusae, ergo non est standum ipsorum confessionibus: confessio enim haec deficit in sui [...] principiis, & est contra naturam, & ita impossibilis. I con­fess, that such confessions may be a ground to condemn the confessors, because though they were not actually where they dream'd, at these meetings, yet it infers that they had a desire to be there, and consented to the Worship, and believed that transformation to have been in the Devils power; but all these are but personal guilts in the confessors, and cannot reach others. And besides this, it is very clear, that the depositions even of con­fessing and penitent Witches, are no concluding probation; for they are sociae criminis, and such are not to be believed, they are infamous persons, and such ought not to be believed; and they can give no sufficient causa scientiae and reason of their know­ledge, the want of which doth in Law enervat the deposition of a Witness: and with us, the depositions of dying Witches were repell'd, in the case of Alison Jolly, pen. Oct. 1596.

Divines, whose punishments reach no furder then Ecclesiastick censure, may punish not only certain guilt, but scandal; yet Law­yers, being to inflict so severe a punishment as Bu [...]ning, and loss of all their moveable Estate, should not punish but what they know infallibly to be a real guilt, nor should they punish that guilt, till it be convincingly prov'd. For, though this woman were guilty, yet if she be so, she will suffer by the sting of her conscience here, and will be reserv'd for a greater fire hereafter, then you can ordain for her; whereas if she be innocent, your sentence cannot be reformed. And why should you take pains to [Page 196] augment the number of the Devils servants in the eyes of the world?

Nor doth the Civil Law punish alwayes what Divines con­demn; for thus, though it be murder by the Divine Law to kill a Wife taken in the act of adultery, yet the Civil Law allowes it: and though it be unlawfull by that Law to cheat our Neighbour in buying or selling, yet the Civil Law allowes all such bargains, except the cheat amount to the value of the half. Thus, the one of the Laws respecting mainly the good of Souls, and the other the good of Commerce, as they have different ends, so they take different measures; and therefore it is, that politick Laws, have allowed cures even by sus­pected means; which principle is also allowed by Bartol. Salicet. Azo: and others, ad dict. l. 4. and even according to the principles laid down by Divines, except there were a paction prov'd, or confest, all remedies should rather be ascribed to nature, then to Witchcraft.

Consider how much fancy does influence ordinar Judges in the trial of this crime, for none now labour under any extra­ordinar Disease, but it is instantly said to come by Witch-craft, and then the next old deform'd or envyed woman is presently charged with it; from this ariseth a confused noise of her guilt, called diffamatio by Lawyers, who make it a ground for seizure, upon which she being apprehended is imprisoned, starved, kept from sleep, and oft times tortured: To free themselves from which, they must confess; and having confest, imagine they dare not thereafter retreat. And then Judges allow themselves too much liberty, in condemning such as are accused of this crime, because they conclude they cannot be severe enough to the ene­mies of GOD; and Assisers are affraid to suffer such to escape as are remitted to them, lest they let loose an enraged Wizard in their neighbour-hood. And thus poor Innocents die in multitudes by an unworthy Martyredom, and Burning comes in fashion; upon which account I cannot but recommend to your Lordships seri­ous [Page 197] consideration, that excellent passage of a Learned Lawyer, Baldwinus, ad § Item lex Cornelia jnstit: de publ. ju [...]. Sed quo gravius, & ab hominis ingenio magis alienum est hoc malum, co major adhibenda est cautio, ne quis ejus praetextu ab adversariis temere obruatur, facile enim hic quid vis confingere potest ingeniosa simultas, ut & multitudinem credulam statim emoviat, & judices irritet adversus eum quem cum demonibus rem habere mentietur. Ante annos sexaginta, sensit infoelix nostra patria, magno suo ma­lo, hujusce generis calumniis, magna erat Waldentium mentio, quos adversarii jactabant nesci [...] quid commertii habere cum innu­meris spiritibus, hujus criminis praetextu optimi quique statim opprimebantur, sedtandem senatus Parisiensis, causa cognita, vidit meras esse sycophantias & infoelices reos liberavit.

For Titius, accused before the Secret Coun­cil for beating his Wife.

AS nothing but the last degree of passion could have pro­vockt my Client to correct this unfortunat Woman, so no creature which doth not feel his grief, can expresse the reasons, which forced him to it. Nor could the fear of punishment, if it were not joyned with the sense of honour, move him to lay open before your Lordships, the sad story of these persecutions he has for seven years suffered, and the dishonourable secrets of his own family, which during all that time, he has laboured to conceal.

Nor can I (my Lords) but regrate, that I should be forced to lead your reflections into my Clients house, and to shew you there a Woman burning, not with fl [...]mes of love, but revenge; embracing her Husband, not out of kindnesse, but to throw him into the fire; watching him in his sleep, but that she might even disturb him in his rest; inviting his Friends to her house, but that she might highten his infamy, in letting them hear her rail against him: and all this done, not for a day, or under the excuses of passion, but for seven whole years; [Page 199] nor done so passingly, as that he could entertain any hopes of her reconciliation to allay his grief; but she begun to torment him the next day after the Marriage, beating him with her Slipper, so that only his Marriage wanted its honey-moneth, and so malitious was her humour, that she could not bridle it for one day. And these affronts were dayly continued, most deliberatly, and owned after all the remonstrances her friends could make for reclaiming her, at which occasions she used to speak kindly of nothing to him or them, but her passions, justifying her lying of him as Wit, her railing against him as Eloquence, her revenge as Justice, and her obdurednesse as Constancy.

This being the person against whom I am to plead, I am oblieged to give your Lordships some character of him for whom I appear, who was not only born a Gentleman, but by being a Souldier, has made himself so, and by both these qualities, has so strong an aversion against beating any Woman, that the great respect he had for that lovely Sex, made this Pursuer, after ten years intimat acquaintance, choose him for her Husband; and for seven years, he hath not only suffered, but concealed his wrongs, to that depth, that his hair hath by grief changed its colour twice, the strength of nature, and grief, overcoming each other by their several turns. Nor doth he think himself concerned to answer his Wifes calumnious re­proaching him, as having been her Husbands servant; for it is most true, that after he lost his Estate in his Majesties service, her first Husband choos'd him for his Friend, and after his death, she choosed him for a Husband; which shews, that he had some worthy qualities about him, which were able to supply that great want, the want of Riches; and is it not clear, that when Women begin to complain of so sacred a re­lation, they will make faults where they cannot find them? and these Wives who would divulge what is true, would in­vent what is false.

[Page 200] I confesse (my Lords) that there is very much due to that excellent Sex, when they are, what they ought to be; but our love to Wine, must not hinder us to call it Vinegar when it corrupts; nor should we flatter Tyrants, because we love Monarchies. But Judges must look more to Justice, then complement; and therefore, I must beg pardon to alledge for my Client, that he cannot be punished for beating his Wife, because, The Wife is by Law under the power and autho­rity of her Husband, which subjection is not only the punish­ment of her sin, nor will all this power repair to man, the losse he had by the injury done him when he got this power; but this power is put in the Husbands hands, for the good, not only of the Common-wealth, but of the Women themselves: as to the Common wealth, it was fit, that in every Family the Husband should be empowered to correct the extrava­gancies of his Wife, and not to bring them before the Judge, and in publick, this would have divided families, raised pub­lick scandals, and many will be content to receive correction in privat, who would never be reconciled after a publick correction. And as to the Women themselves, it was fit, that she being the weaker Vessell, a creature naturally passionat, and wanting experience, should therefore be govern­ed by, and subject to, her Husband; and as the head may resolve to chastise or mortifie any part of the body, when it thinks that Discipline will tend to the general advantage of the body; So may the Husband, whom the Scripture calls the head of the Wife, correct the Wife, when that correction may tend to the ad­vantage of the Family.

Let us but look back upon the first ages of the World, and we will find that the Husband had generally power of life and death over their Wives, even amongst the best of men, the Romans, and thus Plin. lib. 14. cap. 12. reports, that Egna­tius Mecennius kill'd his Wife, for having drunk too much [Page 201] Wine, and that her death was not enquired into, as that which the Law then allowed. And Caesar tells us, lib. 6. that the Germans in Uxores, sicut in liberos, vitae necisque potestatem habebant. And till this day, the southern Nations (whose wits ripen more then ours, as nearer the Sun) have still the same power continued to them, by which the Women loss litle, for it keeps them from adventuring upon these extra­vagancies, for which our complementing Nations hate their Wives, which to a kind Wife, should be worse then death. But if these Laws think this power of life and death fit for the Husband, it should at least teach us to bestow upon him the power of correction, for which I only plead; which power of correction, is by Bonaventur said to be allowed them by the Law of Nations, 4. sentent. distinct. 37. masuer. tit. de possess. §. item maritus. By the Canon Law, the Wife is declared to be more in the power of the Husband, then of her Father, can. sicut alterius 7. quaest. 1. and that the Husband may im­prison her, or keep her in the stocks, can placuit. 33. quaest. 2. And if we consider our Law, we will find, that Husbands have the same power over their Wives, that a Father hath over his Child, c. 131. leg. burg. which Law saith, That he should correct her, as not knowand what she should do, and as a Bairn with­in age, seing she is not at her own liberty. And as the Council would not hear a Child complaining that his Father had beat him, So neither should they hear a Wife. We have also an express Statute, 2. Dav. chap. 16. wherein it is appointed, that no accusation shall be received against a man for having oc­casioned the death of his Wife, except it be notoriously known, that he gave her wounds whereof she dyed; by which it is necessarily implyed, that he is not punishable, nor cannot be accused for any wounds given which were not mortal; where likewise there is a decision of the said King David, related in thesete [...]ms.

[Page 202] In the time of King David, a case happened in this manner; An man of good fame gave to his Wife, descended of great blood, an blow with his hand, of good zeal and intention to correct her, and she being angry with her Husband after that day, would not for no mans request, eat nor drink till she deceased, and entered in the way of all flesh. The friends of the Woman accused the Husband for the slaughter of his Wife: And because it was notour and manifest that he did not slae her, nor gave her no wound of the whilk she died, but gave her an blow with his hand, to teach and correct her, and also untill the time of her death loved her, and entreated her as a Husband well affectionat to his Wife; the King pronounced him clean and quit, and thereanent made this Law.

But, I find it is answered by the Wifes Advocats (who can bet­ter maintain, then they could suffer what she has done) that though the Laws of other Ages and Nations, did, and do allow this power to the Husband; yet, our present customs, as well as our in­clinations, hate that stretch'd and ungentle power: and though our Law did allow some power to the Husband for correcting his Wife; yet, that power could not be extended to defend such violent courses as were here used, where the Husband did hold her head to the fire till her face was burnt, and did there­after beat her with a Slipper. Nor do any Law or Lawyers allow more then modica coercitio for her correction; but such an excesse as this would be punishable in a Father towards his Child, or in a Master towards his Servant.

To which answer the poor Husband acquiesces as much as they, and by his patience and continued kindnesse, in spight of all these disgraces and affronts, he has testified more re­spect then the Law could have commanded. But since it is ac­knowledged upon all hands, that the Husband might have cor­rected his Wife, and that he is only punishable for having ex­ceeded the just measures which the Law allows, I shall first relate the matter of fact, and shall then examine, if he did not proportion the punishment to the injury.

[Page 203] After my Clients Wife had swore she would starve her self, if he would not renunce all her Estate, he (good man) con­descended to her extravagant desire; but not satisfied with this, she swore she would kill him, if he did not leave the Country: and finding that he came in at night, she beat him with her Slipper, but finding he only smiled at this, she came running up to him with a knife in her hand, whereupon he threatned to hold her head to the fire, if she would not calm, and so took the knife from her. Notwithstanding of all which, both kind­nesse, and threats, she did a third time flee in his face, but at last, fearing his patience might not only prejudge himself, but her, he did take her and hold her face a little to the fire, but without any defign, save of terrifying her; but she being strong, and malice supplying what strength her Sex denyed her, wrestled out of his hands, and in wrestling, threw her self upon the fire, and burnt a little her own face. All which shall be proved by witnesses, who saw the whole tract of that unhappy bussle, for it was an aggravation of her guilt, that she used him thus publickly.

This being the state of the case, I hear such as stand behind me swear, had she been mine, I had drowned her, or starved her, and I conjure your Lordships to reflect what any man would have done in that case; but I shall only debate, that this guilt deserved a more severe punishment, then what he inflicted. For, 1. in proportioning the punishment to the guilt, your Lordships will be pleased to consider, that the Husband never having punished her former extravagancies, was here to punish at once, all that she had formerly done, and if every offence deserved correction, ten thousand offences deserved one that was very great; and if the Law after it hath punished the first two small thefts, punishes the third with death, and after it hath punish'd breaking yards with small pecunial mulcts, maketh the third capital; may not the hundreth offence in beating a Husband, and laying snares for his life, deserve all [Page 204] done, where the former faults were also to be punished? And since no Judge could have refused to have burnt her in the Cheeck for three such riots, sure the Husband cannot be punished for punishing a hundreth at the same rate; and I hope your Lordships will imagine, that a Husband who suffered so many affronts, would not have been too violent in punishing the last, and that she hath her self to blame, having contemned the warning given her by her Husband, and in giving of which warning, it clearly appears, that he was master of his passion, and proceeded both kindly and judiciously; or though he did deserve a punishment, yet by-past-sufferings, torments and affronts, may do more then satisfie her, for that one injury, of which she can only complain: and as in ballancing accounts, so in ballancing mutual crimes, we must not look to the debt and credit of one day, but considering all that either party can lay to one anothers charge, we must at the ballance only determine who owes most, and if that method be followed, then sure your Lordships will find, that as injuries may be compensed amongst the parties themselves, in so far as concerns their privat interest, so here, my Clients Wife having been more guilty towards him a thousand times, then he can be said to have been towards her, though this riot were acknowledged, her in­terest ceases, and her complaint doth become thereby most unjust.

Though the Law designs to restrain our vices, yet because it cannot root out our passions, it pitties them; it employes its justice against our crimes, but its clemency against our passions: and so high did this clemency run in the Roman Law, that he who in passion kill'd his Wife, being taken with her adulterer, was not punished as a murderer, qui impetu tractus doloris inter­fecerit: and the reason the Law gives for remitting the crime is, cum difficillimum sit justum dolorem temperare, l. 38. ff. ad. l. jul. de. dult. And if any passion deserves pardon, it must in him who has bestowed pardons for seven years; or if it may plead against any, it must be against her who raised injustly, the [Page 205] passion of which she complains. Injuries from a Wife are crimes; and if injuries can justifie passion amongst strangers, much more can they do it in a Husband.

I hope your Lordships will likewise consider, that self-defence is not only a priviledge introduced by Law, but a duty imposed upon us by nature; and without this, this world were nothing but a scaffold, and every man with whom we conversed, might prove an executioner. Nor doth this self-defence only secure us when we kill such as would attacque our life, but it secures us likewise when we chastise such as would stain our honour; for life without honour, is but as a dead carcass, when the Soul is fled, or a King when he is dethroned. And since the Law has p [...] lel'd life and honour in every thing, it is most just, that seing we may kill such as invad the one, we may at least chastise such as invad the other; especially seing these who are here punished, have only themselves to blame, as the authors and occasions of all those accidents of which they complain: and therefore, my Lords, I shall intreat you to figure to your selves, what a man could do, if his Wife should constantly resolve to spit in his face when he were amongst strangers, or constantly awake him when he resolved to rest: were it not ridiculous to put the Husband alwayes to complain to a Judge in those cases? and yet to suffer such injuries to be unpunished, were not only to make a man miserable, but to force him to an impertinent clemency, which might breed up his Wife to an insufferable insolence. And if mean people, (who wanting generosity and vertue, are curbed by nothing but awe and fear) should come to know that the Councill allowed such an indul­gence to Women, and that there were no place for the justest complants of injur'd Husbands, what ruptures would this occasion in privat Families, what numerable suits before your Lordships, and how many separations betwixt Husband and Wife?

[Page 206] Do then, my Lords, by this decision, let the people see, that as vertuous and deserving Women may expect the highest and purest respects imaginable, so such as shew themselves un­worthy of these favours, may expect punishment answerable to their crimes. Nor is it a small aggravation of their guilt, that they endeavour as far as in them lyes, to draw contempt and disgrace upon that amiable, and deserving Sex. Thus good Women will be complemented, when they find they owe not the respect they get to the Law only, but to their own merit, and unworthy Women will find, they may expect a happier life by taming their own insolencies, and by living in concord with their Husbands, then they can from their insolent, and outragious abusing of them.

The Counsel imprisoned the Husband for one night.

For Charles Robertson and his two Sons.
XVIII. PLEADING. How far Minors may be punished for crimes. 2. Whether Com­plices may be pursued before the principal Party be found guilty. 3. Whether Socius criminis may be received in Riots and lesser Crimes.

THe crime for which my Clients are accused, is, that in January, 1660. the said Charles Robertsons Brother and two Sons did convocat the Lieges, and throw down a house belonging to Elizabeth Rutherford, which they did at their Fathers desire, or at least, that their Father did ratihabit the same.

Against this Indictment, it is alledged, that the two Sons, the one being of the age of fourteen, and the other of fifteen, cannot go to the knowledge of an Inqueist, for throwing down this house, since they offer to prove, that they were informed by their Uncle, that this house belonged to their Father, and that it was their Fathers desire they should go along with him to throw it down; for though Minors may be punished for attrocious crimes, committed against the Law of Nature, such as Murder, Incest, &c. and to abstain from which, the youngest conscience doth advise: yet, such acts as cannot be known to be criminal, but by such as understand positive Law, are not [Page 208] punished as criminal, but in such as are oblieged to understand that Law. None will contravert, that the throwing down such a little house, not exceeding six pounds Scots of value, and to which, they and all the Countrey had heard their Father pretend right, cannot be called a crime against the Law of Nature; and it is only a crime in positive or municipal Law, when it is done by such, as are oblieged at the time to under­stand they are doing an injury, and that the house belongs not to him, at whose command they are throwing it down, and these Children were not oblieged to know this; for since they are not in Law oblieged to understand their own rights, till they be Majors, much lesse are they oblieged to understand the rights of other men; and in this case the undestanding the matter of rights, is that only which infers the crime, for if the Father had right, this had been no crime in him, nor them.

I am sure, there is a great distinction betwixt acts, which are of their own nature indifferent, such as throwing down of houses, taking men prisoners, &c. and these which are of their own nature vitious, and criminal, and need no extrinsick thing to clear that they are so, such as murder, and robbery; the first doth require the knowledge of something that is ex­trinsick to the act which is done; nor is the guilt infer'd but by reasoning, and judgement, and therefore that guilt should not fall upon Minors, except they are dolosi, and are presumed to have done it intentionally and upon design, and how can design be presumed in these Minors, since the committing this act did not take its rise from them, but from their Uncle, and Father, and they were to gain nothing to themselves, immediat­ly by it? nor can it be imagined, why the Law will for want of understanding, lessen the punishment in the most attrocious crimes, such as Witchcraft, murder, &c. in such as are thriteen years of age, if it will not remit absolutely the guilt, in such cases as these, where the guilt was neither palpable; nor the [Page 209] prejudice great. And if Minors be to be restored adversus delictum in any case, as is clear they are, they ought to be re­stored against this, where the guilt doth consist in a punctilio or nicety of Law, such as, that though the Father had right to the house, yet he could not have thrown it down by his own authority; a principle which few countrey men understand, when they have reached twenty one years, si delictum fuerit commissum sine dolo potest minor juvari ope restitutionis in inte­grum, etiam ad hoc ut à totapaena excusetur, Clar. quaest. 60. & Anan. in cap. 1. num. 8. de delict. puer. Nor can I see a reason why crimes by the unanimous opinion of Lawyers are said not to be punishable in Minors when they are perpetrat non committen­do, sed omittendo, if it be not because omissions are juris, and fall not under sense, and proceed from a weaknesse of the judge­ment; but yet I think the former distinction more just, since omissions of what nature requires, should bind them, but no­thing should bind them which proceeds from a weaknesse in judgement, since Law allowes Minors to have no judge­ment.

But whatever be alledged against other Minors, yet these having obey'd their Father, in an act which was of its own nature indifferent, they cannot be punished for the guilt though he may, for that were to make poor Children unhappy, in subjecting them to double punishments, for if they obeyed not their Father, they could not escape their Fathers anger, or if they did obey, they fall under the Laws revenge. And it were very unjust, that the Law which has subjected them to the power of their Father, should not secure them when they obey that power to which it has subjected them. And upon the other hand, it would lessen much that power which the Law hath taken so much pains to establish in the persons of Fathers, and Masters, over their Children, and Servants, if it gave them occasion to debate their commands; and though a Son, or a Servant, are not obliegd to obey their Father or Master, [Page 210] in things palpably attrocious, and wicked; yet, where the thing commanded is not necessarily, and intrinsecally unjust, they should either obey there, or no where; and what a great prejudice were it to the Common-wealth, if a Son or Servant should refuse to assist, in bringing back Cattle, which others were driving away, to labour Land, or assist Poindings, or even throw down houses at their Father, or Masters desire, because they might pretend his right were not sufficient? and so the Father and Master should be still oblieged to give an account to his Son or Servant, of his right and title upon all occasions, and his commands, which require oftimes a speedy execution, should be delayed in the interim. To prevent all which, the Law hath for the good of the Common-wealth, allowed Sons, nor Servants, no will of their own, making them in effect but the tools and instruments of their Fathers and Masters will, Non creditur velle qui obsequitur imperio Patris, vel Domini, l. 4. ff. de. reg. jur. And if the Law allowes them to have no will of their own, it cannot punish them when they obey their Master, for all guilt is only punished, because it is an effect of the will; and therefore, John Rae was not put to the knowledge of an In­queist, as art, and part of theft, because he went only along with his Father, when he was about twelve years of age, 1. of Januar, 1662. And by the 19. cap. num. 9. stat. Will. the servant is only declared punishable, if he do not detect his Master, or desert his service: and per. l. lib. homo. ff. ad. l. aquil. it is expresly decided, that si jussu alterius manu injuriam dedit, actio legis aquiliae cum eo est qui jussit, si modo jus imperandi habuit, quod si non habuit, cum eo agendum est qui fecit.

Though Minors may be punished for a guilt, yet they ought not to be indicted till they attain to the years of Majority, be­cause if they were to be tryed in their lesse age, they might by want of wit and experience, omit their own just defences, and mismannage the debate in which they were ingaged, as to which, our old Law appears to be very clear, R. M. lib. 3. c. 32. lib. 2. [Page 211] cap. 41. quia dicere vel tacere potest calore juvenili, quod ei nocere potest: Suitable to which, Skeen doth in his Annotations observe a decision, betwixt His Majesty, and the Abbot of Parbroth, anno, 1312. & l. pen. cod. de autor. tut. &. l. 1. S. occisorum ad S. C. Sillan & cap. 2. de delictis puerorum. extrav. Since a Minor may be restored against such omissions, or against a confession omitted by him, quando non potest aliter contra eum probaricrimen, or may omit to object against Witnesses, it is more just and convenient, that he should not be tryed till he be Major. For, if he be tryed, he must be once punished, and then his being restored is both impossible and improfitable: and it were very inconsequential for our Law to have so far priviledged Minors, as that they are not oblieged to debate super haereditate paterna, and that too upon these same reasons I here alledge, and that it should not much more secure them against criminal tryals in the same minority, where the hazard is greater, especially where the Common-wealth is not concerned (as here) to have the guilt immediatly brought to open punishment, and where the crime is not attrocious, reaching no furder then privat revenge, and a pecuniary punishment. Nor is the publick in this case disappointed of a just revenge; for it can reach the Father or Uncle, who are alledged to be the principal actors.

For the Father, I alledge, that he cannot be pursued, as he who was accessory to the committing of the crime, in commanding or ratihabiting it, except it were condescended from what particular acts his ratihabition can be inferr'd, whether by words, deeds, concealing, or otherwise; and it is not sufficient to lybel in the general, that he did ratihabit, no more then a Lybel would be relevant, bearing, that my Client were guilty of treason, without condescending how, as is clear by the opinion of all Lawyers, who require, that Lybels should be special, which is required by them, to the end that the relevancy of the Lybel may be debated and determined [Page 212] by the Judges, before it go to a tryall, which should be rather done amongst us, then any other Nation, because the probation is in this Kingdom tryed only be an Assize, and these are ordinarly men who understand not the intricacies of Law; whereas if the particular way and manner of ratihabition be not condescended on, and discust by the Judges, it must come to be debated after the probation before the Inqueist; and thus not only relevancy, and probation, matter of Law, and matter of Fact, but even the distinct offices of Justices, and Assizers, will be here confounded. As for instance, if the pursuer should prove, that the Father said that all was well done, we would be forced to debate before the Assize, that such passing words as these cannot infer a crime, for else many thousands in a Nation might be found guilty of crimes to which they had no accession: Or if it were only alledged, that he received his Sons into his house, it would be likewise debated, that the receiv­ing of a mans own Sons into his house, cannot infer a crime in delictis levioribus, though it may be debated to be crimi­nal in Treason, and more attrocious crimes. Upon which, and many other points, the Doctors have writ very learnedly, and to debate such points before ignorant Assizes were very dangerous.

It is likewise alledged for the Father, that he being only pursued as accessory to this crime committed by his Brother, in so far as he did either command or ratihabit, it is therefore necessar, that the Brother be first pursued and discust, it being a rule in all Law, that the principal should be pleaded and dis­cust, before him who commanded the same to be done, or be­fore the receipter, as is clear by R. M. lib. 4. cap. 26. intituled, The order for accusing malefectors for crimes; which agrees like­wise with the opinion of the Civilians, and particularly Clar. quaest. 20. num. 6. whose words are, Scias etiam quod quandoque proceditur contra aliquem tanquam quod praestiterit auxilium delicto, debet primo in processu constare principalem deliquisse. [Page 213] Mars. quaest. 26. gives an example of it just in our case, a Father is pursued as accessory to his Sons guilt, in which case he alledges the Father could not be tryed, till the Son was first discust; & Alexand. consilio 15. vol. 1. dicit, quod nisi prius constet de manaatario, procedi non potest contra mandantem; with which the English Law agrees fully, by which the prin­cipal ought to be attainted by verdict, confession, or by out­lawry, before any judgement can be given against accessories, Bolton cap. 24. num. 38. And therefore, except the Uncle, who was the principal actor here, were first found guilty by an Assize, my Client as commander and ratihabiter cannot be punished.

To this it is answered, that the foresaid Law of the Majesty holds only in theft, but not in other crimes, and that as to all crimes it is abrogat by the 90. Act. 11. Parlia­ment, Ia. 6. by which it is appointed, that all criminal Lybels shall be relevant, bearing art and part, without making any distinction betwixt principal and accessories, and the Father is called here as a principal, having given a warrand, as said is, for else the giving warrand for doing treasonable deeds, or to commit murders, could not be punishable, though nothing followed; whereas in all Law, such deeds are criminal in themselves, and the mandant might be immediatly punished.

To which it is replyed, that this Maxim holds not only in theft, but in all other crimes; for as there can be no reason of disparity given to difference theft from other crimes, as to this point; So the rubrick of the former Chapter 4. is general, and in the fourth Verse of that Chapter, it is said generally, That [...] is manifest, that the commander or receipter shall not be ch [...]rged to answer, till the principal Defender be first convicted by an Assise. Which is likewise quoad all crimes ordained indefinitly by the 29. Act. Stat. David 2. Nor can it with justice be pretended, that these Laws are abrogated by the foresaid Statute of King Iames the sixth, for these reasons; 1. That Act doth not ex­presly bear an abrogation of the former Laws, and standing [Page 214] Laws cannot be abrogat by consequences: nor can it be, but if the Parliament had designed to abrogat so old and fundamental Laws and Customs, they would have exprest their design, espe­cially since in criminal cases, all Lawyers endeavour to make their Laws clear and perspicuous. 2. No Laws are interpret to abrogat one another, except they be inconsistent, so in­favourable is abrogation of Laws; and it is generally received, that Leges in materia diversa sese non tollunt, nec abrogant: but so it is, that these Laws here founded on, are most con­sistent with the Act of King Iames the sixth, and these two are materiae diversae; for it is very consistent, that a Libel bearing art and part should be relevant, and yet that the prin­cipal should be first discussed; for though the principal be first to be discussed, yet, when the accessories are to be accused, it is sufficient that it be generally libelled against them, that they were art and part, the one of these regulats only the way of procedure, & ordinem cognitionis, the other regulats the relevancy, and shows what Lybel shall be sufficient. Nor was there any thing more designed by that Act, Ia. 6. but that Lybels in criminal cases should not be cast as irrelevant, as is clear by the narrative of the Act. And by the civil Law, ordo cognitionis, & accusatio eorum qui opem auxilium pre­stiterunt, are alwise accounted different Titles, and are dif­ferently treated; so that these two Laws are very different, and very inconsistent. 3. If that Law, Ia. 6. had abrogat the former Laws, whereby it is appointed, that the principal should be discust before the accessories, then it had followed by▪ necessar consequence, that these Laws could not have taken place after that Act; but so it is, that Defences are dayly sustained upon these Laws, as in the case lately of George Graham, which shewes very convincingly, that they are not abrogated.

The reasons likewise whereupon that Law was founded, or­daining that accessories should not be pursued before the prin­cipal [Page 215] be discuss'd, are still in vigor, and are so just and necessar, that it were injust to abrogat a Law founded upon them; for the Law considered, that if the principal were called, he might know many defences, which i [...] they were known to these who are alledged to be accessories, would certainly defend them; as in this case, if the Uncle were called who threw down the house, it may be he would alledge, that he did not throw down this Cottage, till the accuser had consented, which consent he pos­sibly hath: and this may be necessar in a thousand cases, as if a person were pursued for having been accessory to the driving away Sheep, or Neat, he might be convicted, though he were innocent, if the principal were not called, which principal if he were called, might produce a Disposition from the party, or a legal Poinding, either of which being produced, would defend both: whereas upon the other hand, if it were lawful or suffi­cient to accuse any persons as accessories, without pursuing the principal, the accuser might collude with the principal, and suffer him to go unpunished, providing he would keep up the Defences and Warrands, and so suffer the innocent accessories to be condemned.

Is it not a principle in Nature, that accessorium debet sequi suum principale? And doth not the Law still require, that prius de­bet constari de corpore delicti? And how can a man be pursued for hunding out another to throw down a house, untill it were first known that the house was thrown down? Nor is the giving an order to throw down a house criminal, though it were proven; except the house were according to that order thrown down, and that it was thrown down by vertue of that order, and upon no other account. By all which it clearly appears, that the throwing down of the house, which is the principal guilt, must be first tryed, before it can be enquired, who gave the command.

The last, and one of the great arguments, I shall use to prove, that the principal who threw down the house must be [Page 216] first discust, before my Client can be pannell'd for commanding or ratihabiting, is, that by this method, probation should be led against absents, contrar to the known principles of our Law, and by the connivance or ignorance of the accessories, the fame of an absent person may be wounded, and witnesses suffered to depone, who dared not have deponed if he had been present; and though that probation led against him in absence would not be concluding, yet it would leave a stain; and would engage the deponers to adhere to these prejudicat and false depositions in another Process, to secure themselves against perjury.

Whereas it is pretended, that sometimes command is a crime, though nothing follow, It is answered, that where a mandat is of it self criminal, though nothing follow, as in Treason, there the giver of the mandat must not be pursued as a Complice, or accessory, but as the principal transgressor; nor would the King be prejudged (as is alledg'd) if the prin­cipal behoved first to be discust, because it is pretended, that that principal might abstract himself, and thereby cut off the publick revenge, which would otherwise justly fall upon the accessories if they could be apprehended. For to this it is answered, that it is easie for His Majestes Advocat to raise a pursute against the principal, and if he compear, to proceed against him, or if he compear not, he may be denunced fugitive, which is a sufficient discussing of him as a principal, and will open sufficiently a way to proceed against the Com­plices.

It is likewise alledged, that the witnesses which are offered to be adduced against my Clients, for proving that they com­mitted this crime, are not testes habiles, and cannot be admitted, because I offer to prove by their own oath, that they were at the pulling down of the house, and did actually pull it down, and so are socii criminis, and consequently are repelled from witnessing, by the 34. cap. stat. 2. Rob. 1. where there is an [Page 217] enumeration made of those who cannot be admitted to be witnesses, amongst whom are socii & participes ejusdem criminis.

To which exception; the accuser answers, that though Socius criminis, cannot be admitted pro socio, yet he may be admitted contra socium, that he may be witness against, though not for those who were ingaged with him. 2. Though socius criminis may not be admitted as a witnesse contra socium, where the crime in which they were ingaged fixes infamy upon the committers, as Treason, Witchcraft, Murder, &c. yet in Delicts or rather Riots, such as is the casting down of a house, that tends to infer a pecuniary, and not a capital punishment; there socii criminis may be received as witnesses; for, the reason why they are ordinarily repell'd, is, because in deponing they confesse a crime against themselves, & se infamant, which reason ceases in Delicts or lesser crimes, quae non infa­mant.

It is likewise represented, that it is most clear from Law, that the only reason why socii criminis are repelled from being witnesses is, because deponendo se infamant, and so they forfeit the capacity and confidence of integrity that the Law reposes upon all persons that ought to be believed as witnesses; by the whole contract of the whole Titles, ff. &C. de testibus. And by Clar. quaest. 21. num. 8. Dictum socii criminis ad hoc ut fidem faciat, requiritur, ut sit confirmatum in tormentis, cum enim ex proprio delicto sit infamis, nec debet admitti pro teste sine tortura; and the foresaid Text of the Majesty, ought as is alledged, to be interpret only so, as to take place ubi crimen infamat, and that dilicta non infamant is endeavoured to be prov [...]d by the Statute of King William, de his qui notantur infamia, where it is said, that fures, sacrilegii, homicidii. and others, qui sunt irretiti capitalibus criminibus, repelluntur a testimonio.

[Page 218] [...] witnesses in delicts and riots should not be admitted because they are socii criminis, no delict (sayes the pursuer) should ever be prov'd; for ordinarly none are present but the com­mitters. And since after their confession they may be pursued themselves, it is not probable that they will depone against others falsely, especially when they may be overtaken upon their own deposition.

To which it is duply'd, that it is a rule in Law, that socius criminis, nec pro, nec contra socium admitti potest, l. quoniam C. de test. Mascard. conclus. 1418. by which it is clear, that the Law makes no distinction whether he be adduced, for, or against his Commorads, whether he be adduc'd in crimes, or delicts; and socius criminis is not only repell'd from being a witnesse, because he stains his own fame, whilst he depones against his companions, but because the Law presumes that being himself under the mercy of the pursuer, he will by an unjust deposition ransome himself from the event of the pursute, and therefore the Law casts him as a witnesse; for the Law is un­willing to use those who hath offended it, and Lawyers have alwise been unwilling to tempt men, by forcing them to depone upon their own errors, for they judged, that these who would commit a crime, would easily forswear it. And the Law of the Majesty formerly cited doth repell à testando socios criminis, & infames, whereas it needed not have exprest both, if it had comprehended the one under the other, and only repelled socios criminis, because they were infames.

I perceive by Lawyers, that sometimes they allow wit­nesses in attrocious and great crimes, whom they would not have admitted to prove crimes of lesse consequence, which pro­ceeds both from the hatted they carry to these great crimes, a part of whose punishment it is that the crime can be easily prov'd: but likewise to the end the Common-wealth may be the better secured; whose great concern it is, that Judges be not too nice and scrupulous in receiving witnesses against its [Page 219] enemies. Nor did the Law think, that men would be so base and malitious, as to seek the death of their enemies by a false deposition, even where possiblie revenge would be content to reach their Estates. Therefore, by the common Law of Na­tions in attrocious crimes, such as treason, simonie or sacriledge, socii & participes criminis admittuntur, l. quisquis C. ad l. jul. majest. glossa in l. ffin. C. de accus. specul. tit. de prob. §. 1. Boer. quaest. 319. and according to our Law it is appointed by an expresse Act of Sederunt, anno, 1591. that socii criminis may be witnesses in the cases of Treason, and Witchcraft; but I do not at all read, that socius criminis is allowed to be led a witnesse in delicts, and all the reasons that militat for the former cause, do militat against this. Nor is it possible to believe, that the Law which allowes socii criminis to be witnesses in great crimes, because they are great, would likewise allow them to be led witnesses in small crimes, because they are small; for so the Law would contradict it self, and would build contrarieties upon the same foundation: and since the foresaid Act, 1591. allowes them to be led witnesses in crimes of Witchcraft, and Treason, they ought not to be admitted in any other crime, how small so ever, for in privilegiatis, inclusio unius, est exclusio alterius.

It is very clear, that the Law would not admit the testimony of a partaker of the crime, to have the force of a presumption, nor to be the ground of an accusation, Salicet. in l. ffin. C. de accus. nor gives it any credit to his deposition, though he were otherwise esteem'd a most credible person, probatissimae fidei, Grammat. consil. 21. num. 3. nor doth it believe him though he were deponing against a person suspected to be guilty, Bert. consil. 268. nor doth it believe a thousand such witnesses, though they agreed in their depositions, for all these joyned together weigh not one presumption, Mascard. ibid. num. 8. By all which it may appear very clearly, that the Law which respects socios criminis so little, doth in no case design to receive them [Page 220] in a criminal Court, what ever may be debated for receiving them in civil Courts, for proving civil conclusions.

As to the inconvenience adduced, wherein it is contended, that if such witnesses were not admitted, no crime could be proved; it is answered, that this Argument would urge Judges to receive socios criminis to be witnesses, as well in all crimes, as in small crimes; for it is a Brocard commonly re­ceived amongst the Doctors, that quod admittitur ob incom­modum, eo magis admittitur, quo magis urget incommodum; and yet here it is confest, that they could not be admitted wit­nesses in murder, and those greater crimes. But the only natural conclusion that could be drawn from this inconvenience, is, that socii criminis should be admitted witnesses in occult crimes, such as conspiracies, but not in such crimes as this where there could be no penury of witnesses, being alledged to be commited in open day, in the midst of a Town, and with a convocation. But to conclude all, I need only say, that my objection against these witnesses is founded upon an ex­presse Law, and therefore it cannot be taken away by this distinction, except this distinction can be establisht upon, and maintained by another Law as expresse.

The Justices found, that these Minors being puberes, might be try'd, and so found that they should passe to the knowledge of an Inqueist.

2. They found the Father should passe to the knowledge of an Inqueist, as art and part, though the principal actors were not yet discust.

3. They found, that socius criminis could not be received a witnesse in any criminal pursute, though the punishment could only reach to a pecuniary mulct.

AN ANSWER To some REASONS printed in England, against the overture of bringing into that Kingdom, such Registers as are used in Scotland.

IN the first Ages of the World, when man had not fallen so intirely as now from his original innocence, Laws were made rather to govern reasonable men, then to prevent cheats. But when fraud did begin to grow up with subtilty, Legislators being warned to guard against future abuses, by these they had seen committed, did in all places endeavour to reform their people, by reforming their Laws, & sic ex malis moribus bonae ortae sunt leges; and because wise men look upon them­selves as sprung from the same divine original, therefore they have still been intent to borrow from one another, what ex­cellent constitutions they found to have been invented by them. Thus though Scotland did adopt the Laws of the Romans (called now the civil Law) into the first place next their own; yet, such esteem hath that Kingdom alwayes had for their neighbours of England, that they have incorporated into the body of their own Laws, very many English Forms [Page 222] and Statutes. And as some Sciences, Trades and Inventions flourish more, because more cultivat in one Nation then another, humane nature allowing no universal excellency, and God designing thus to gratifie every Countrey that he hath created; So Scotland hath above all other Nations, by a serious and long experience, obviated most happily all frauds, by their publick Registers. And though they are not furder concerned to recommend this invention to their neighbours, then in so far as common charity leads them, yet finding their Registers so much mistaken in a discourse, entituled, Reasons against registring Reformation, I thought it convenient to represent a short account and vindication of them. Registers are appointed in Scotland, either for real Rights (for so we call all Rights and Securities of Land) or for personal Obligations, by which a man binds his Person, but not his Estate. Men sell their Land in Scotland, either absolutely, or under reversion; If absolute­ly, it must be either to the sellers own Superior, or to a stranger; If to his Superior of whom he holds his Land, it is transmitted with us by an Instrument of Resignation in the hands of his Superior, ad perpetuam remanentiam, whereby the Propriety is consolidated with the Superiority, and this Instrument must be registrat. But if he sell it to a stranger, then the acquirer must be seased, and this Sasine must be registrat within sixty dayes. Or if a man do not absolutely dispone his Estate, but retain a power to redeem the same, upon payment of the sum for which it is wodset or morgaged, then the Paper whereby this power is allowed, is called a Reversion, and it must be registrat within sixty dayes also. If any Heretor be suspected by his friends to be prodigal, or unfit to mannage his own affairs, he interdicts himself to his friends in a Paper, wherein he oblieges himself to do no deed without their consent: Or, if a Creditor who lent his money to an Heretor, find that Heretor intends to sell his Estate, without paying him, albeit he did lend his money in contemplation of that Estate, which the bor­rower [Page 223] then had; he makes an application to the supreme Judicature of the Kingdom, called the Lords of the Session, and from them obtains a warrand to inhibit his Debitor to sell that Estate, till he be payed, which Interdiction or Inhibition must be first published at the Mercat-cross where the Lands lye, and then registrated within fourty dayes.

There are two of these Registers, or publick Books, one in the chief Town of the Shire, and another at Edinburgh, which serves for all the Shires, and in either of these, all these Sasings, Reversions, Interdictions, and Inhibitions may be registrated: So that when any man intends to buy Lands, he goes to the Keepers of these Registers, who keeps a short breviat of these in a book apart, called the minute Book, (bear­ing the day when any Inhibition was presented against such a man, at the instance of such a man) and there he finds for a Crown, what incumbrances are upon the Estate he intends to buy, and if he find none, he is secure for ever.

As to personal Bonds, they need not be registrated, but if the Creditor resolve to secure his Bond against lossing, or if his Debitor refuse to pay his money, when he calls for it, then he gives in the original, or principal Bond to the Register, who keeps it still, and gets out an Extract or Coppy of it, collationed by my Lord Registers Servants, and subscribed by himself or his Depute; for there is a Register for Bonds in every Shire, Town, and Jurisdiction, as well as at Edinburgh. This Registration hath with us the strength of a judicial Sen­tence, and warrands the Creditor to charge his Debitor, to pay under the pain of Horning (or out-lawry) and if he disobey, the Horning is registrated. And thus every man knows in what condition his Debitor is, as to his personal Estate, if he begin not to keep his credit; and this Register serves both for execution and information.

This being the state of the Registers in Scotland, the usefulnesse of that institution, may appear from these following reasons.

[Page 224] 1. There is nothing discourages men more from being vigilant in their employments, then when they apprehend that the money which is that product, by which their pains uses to be rewarded, cannot be secured to their posterity, for whose advantage they disquiet themselves, and coil so much. And thus the Common-wealth will be but lazily served, Trade will be starv'd, and ingenuous spirits discouraged. Not is it to be imagined how purchasers will be, or are induced to be at much pains and expences, to improve their grounds, and adorn their dwellings; when the loosnesse of their right layes them open to renewed hazards, nor can they enjoy with plea­sure, what they cannot possesse with certainty. And what frail securities have such as are forced to rest upon the ingenuity of sellers, who of all people are least to be trusted? for such as sell Lands, are either prodigals, who are too vitious, or distrest persons, who are ordinarly under too many necessities to be believed.

2. Registers are of all others, the greatest security against the forging of false Papers; for forgers use to conceal for some time, the papers they forge; Whereas the necessity of registrating them within such a time, will either fright the con­trivers, from doing what they must expose to the light, or will at least furnish such as are concerned to have the fraud de­tected, with means which may be effectual, seing it is much easier to expiscat truth whilest the witnesses are alive, and all circumstances recent, then after that a long interval of elapsed time hath carried away the persons, and obscured the circum­stances, from which truth could have received any light.

3. Purchasers being fully secured by the publick faith of Registers, need not burden the seller with a necessity of finding surety to them for the validity of the rights sold, which as it resolves still in an personal (and consequently an unfixt) security, for the buyers, so vexes very much the seller and his friends.

[Page 225] 4. The security, which flowes from Registers, cuts off much matter of pleading, and thereby defends against those feuds and picques, which last ever after amongst such as are concerned, and keeps Gentlemen at home improving their Estates, and Merchants and Tradsmen in their Cantors, and Shops, enriching the Nation.

5. When men are to bestow their Daughters, they are by our Registers, informed, and assured of the condition of those with whom they deal, and by their means, men are kept from giving their Daughters and their Fortunes, or a considerable share thereof, to Bankerupts, and Cheats. Likeas, the Daughters are by them, secured in their Joyntures, and not exposed after their Husbands death, to tedious suits of Law, the dependance whereof draws them to publick places, unfit for their Sex, and the event whereof drives them to begging and misery.

6. By these, the price and value of Land is much raised, for by how much more the purchase is certain, by so much more it is worth.

7. By these, Heretors who are opprest by debt, are relieved by the sale of their Lands, upon which Buyers now adventure freely; whereas, if they were to rely upon the faith of the Sellers, their Estates might continue unsold, till the Rent of their money should eat up the Stock.

8. By these, Usury and unfrugal Transactions with Brockers and others, are much restrained; for if purchases of Lands were not secure, men would rather choose to hazard their money so, then upon Land.

9. By these, Parents know when their Children, and Kins­men, when their Relations debord, and burthen their Estates, and are thereby warned to check, or assist them.

10. By these, Strangers and Forreigners are secured who resolved to match with us, or to purchase amongst us, for our Registers are equally faithfull to all.

[Page 226] 11. By these, Commerce is very much secured; for, if a Merchant, or ordinary transacter refuse to pay his Debts, then his Bond is put in the publick Register, by which the Credi­tor is secured of payment, and the Debitor is deterred from owing too much.

12. By these Registers, Papers are secured against fire, loss and accidents, to which they are exposed whilest they are kept in privat hands: Whereas, after regstration, no­thing can destroy them, but what ruines the whole Kingdom, and even in that case, there is still hope of recovering publick Registers, as in our last revolutions.

In this last place, I must crave leave to wonder, why Eng­land hath already taken so much pains to secure against fraudu­lent cheating of Creditors, and of Buyers, as is clear from the Statutes cited by the Author, if they intend not to prosecute that worthy design. But as an evident mark to know whether Registers be necessary, they may consider, that if any man in England can for a Crown, know in the space of a day, the con­dition of these from whom he purchases, then Registers are not necessary, but if otherwise, they are: If any Lawyer in England can assure his Client, that the purchase he makes is secure above all hazard, then Registers are not necessary; but if they cannot, then Registers are necessary; So that it seems England hath done too much already, or else that they should do more to secure their people. Yet, since I only design to defend our own Law, and not to impugn theirs, it were imper­tinent for me to recommend too zealously, that wherein I am not much concerned.

Against this so just and so necessary a Constitution, founded so strongly upon reason, and approved so firmly by experience, the Author of the Reasons against registering Reformation, hath put his invention and wit (both which I confesse are very fertile) upon the rack, to find out, and muster up some Argu­ments, which owe their number and beauty to the unacquaint­ednesse [Page 227] of his Country-men with the model he impugns, and which the Author hath beat out by too much industry, to a thinnesse, that is not able to bear the weight he layes upon them.

His first Argument is founded upon the dangers that arise from innovations, wherein Legislators are not able to have a full prospect of all inconveniences which may follow: But to this it may be answered, that the Law of England had not de­served the honour done it by the Author, nor had it swelled to its present bulk, if it had not been frequently augmented by new additions. And as to this project of keeping Registers, England may be wise upon the hazard of their neighbours, who by being first practizers, have run all the risque, and taken all the pains which was necessar for accomplishing so great a design.

The second Reason bears, that by Registers, the lownesse of the fortunes of such who suffered for His Majesty, would be discovered, and they thereby exposed to much rigour from their Creditors: But this I humbly conceive, proves more the contrary opinion, then that for which it is adduced; for as it were injust to gratifie such as have suffered for His Majesty, with the liberty of preying upon such as probably lent them, because they were of their principles, and of devouring poor Widowes and Orphans, whose necessities will doubtlesse load one day very much, the consciences of such as might have secured their petty fortunes by the help of the Registers now proposed. And this Argument presses no more against Registers, then it doth against all those laudable and well-contrived Sta­tutes, which are already invented in England against fraudulent conveyances, forgeries and impostures; for Registers will not debar them from courses which are legal and honest.

Whereas it is in the third place urged, that Commerce would be a great sufferer by Registers, seing they would lay open the lownesse of mens fortunes, who do now enrich the King­dom, and themselves too, upon meer credit; and that they [Page 228] would discover to Forreigners, the low Estate of England at present, and make every privat Estate too well known. It is answered, that all these inferences are drawn from the Authors unacquaintednesse with what he impungs, as was for­merly observed; for no man is oblieged to registrat a Bond, which oblieges only to pay money; Nor do men registrat such, except where the Debitor refuses to pay, and so these Registers will not weaken Commerce nor Credit, seing Com­merce is not immediatly concerned in real Estates: and even as to personal Estates, or Money, no man suffers by Registers or is concerned in them, but such as have no respect to their cre­dit, and Commerce owes little to such; whereas upon the other hand, the fear of this will be yet a further tye upon men to pay punctually, without which Commerce will soon be starv'd. And by the Registers, Bankerupts will be soon discovered, whereby honest men who are the true Nurses of Trade will be much cherished and secured. And by this answer it appears clear­ly, that the riches of England, neither personal nor real can be made known by the Registers; for only the Bonds of Banke­rupts are to be registrated, and though all real Rights must, yet the quota of the real Estate is not exprest in the papers to be registrated.

After the Author of that Discourse against registering Refor­mation found, that so unanswerable advantages arise from Re­g [...]sters, as that they could not be ballanced by the inconveni­ences which he laid in the other Scale, he is pleased (which is ordinary for such as cannot prevail by reason) to reflect upon Scotland, as a poor Countrey, and against the Scots as an un­mercifull people, and to alledge, that their poverty, and feverity introduced those Registers, and made them necessary with us, but that they would never agree with the rich, and tender-hearted English; Which reflections deserve rather our pitty, then our answer. Leaving then this womanly way of arguing, as unfit for the Scots, who study to be Philosophers [Page 229] in their Writings, as well as in their Humours; It is humbly conceived, that Registers do restrain no mans compassion, for no man doth vertuously indulge his Creditor, but he who knows the lownesse of his condition, which he cannot without Registers; Ignorance is lesse the mother of vertue, then of devotion. Registers prejudge only such as are Cheats, and such deserve little compassion; Nor are our Laws more severe against Debitors who pay not, than the Laws of England; for both imprison such, and the only weak side in our Law is, that it allows too much our Judges to suspend the payment of Debts, and I never heard the English, who live amongst us, complain of any other defect in our Laws. Our Laws are extracted from the Civil Law, and such Doctors as writ the Law of Nations; And strangers understand our Law sooner than any other Law in the World, except their own; And our Captions for im­prisoning Debitors, who refuse to pay, are expresly warranted by that Law of the Romans; which though it was the best Law in the World, and is universally acknowledged to be such, yet was more severe then ours. The comparing of Nations as to their poverty and riches, brings more heat then light; Nor can any difference betwixt the Nations in these, make any difference as to this design; or if it doth, it may be debated with reason, that Registers are fitter for a rich, then a poor Nation; for where there are most buyers, and most Land to be bought, Registers are there most necessary, seing they were invented to inform buyers, as to the incumbrances wherein Estates are involv­ed by the multiplicity of purchasers. Where there is but little Land, and where the Creditor is poor, there the Creditor may have time, and leisure sufficient, to watch the small Estate of his Debitor. Our Nation supplies their neighbours with Corns, and Cattel, Lead, Copper, Timber, Coal, Salt, and many other necessaries; whereas in exchange of these, it re­ceives only from them Wine, Spices, Silks, and other super­fluities, which as England, no more than Scotland, hath [Page 230] growing within their Countreys, so it is probable that both Nations would live more happily without them: and thus it appears, that Scotland is not so poor, as these reasons are.

I would here put an end to these observations, if I were not unwilling to suffer that Gentleman to continue in his error of thinking, that our registration of Movable Bonds ows its origin to the Caursini, the Popes brokers in England, and to the Camera Apostolica, under the reign of Henry the third; for as it is most improbable, that our Nation would borrow so fundamental a Constitution, from what was practis'd in a Nation that was in enmity with them at that time; so it is no way probable, they would have followed the methods of the Popes Agents at that time, when they were opprest by their Master the Popes endeavouring to subject their Clergy of Scotland, to the See of York, and by these Agents them­selves, in such mercilesse Exactions.

But the truth is, that though the compleating of this ex­cellent Constitution, is an honour due to Scotland; Yet, its first origine is rooted in the Roman Law; and most Nations of the World do at this day use Registers, which may be thus cleared.

The Romans, to restrain excessive Donations, appointd them insinuari apud Judicem, ut obviam iretur fraudibus, which Insinuation was the same with our Registrations; there­after they used Regesta, quae vulgo registra, quasi regestaria dicuntur, illa erant acta tabulae publicae, which were at Con­stantinople; and in the Eastern Empire, called [...], as Prat. observes: and by Vopiscus in Probo, are called Registra. Usus est enim (inquit Vopiscus) registris, scribarum porticus pro­phyreticae.

The Romans had likewise publick Books, wherein papers were preserved, which were under the Western Empire called Archiva tabularia & tablina, but under the Eastern Empire [Page 231] were called Grammatophilacia, ubi instrumenta publice deponun­tur, as Ulpianus observes, L. Moris. ff. de paenis, § 6.

That other Nations besides Scotland use to preserve their Papers in publick places, and appoint their privat Rights to be made publick and known by registering them, appears from Alex. consil. 16. wherein he treats of the Registers Civitatis Rheg. And by his consil. 23. wherein he treats of the Registers Civitatis Arimini; And at Rome they use Regestrum supplicationem apostolicarum; And another Register Literarum Apostolicarum, Castr. consil. 345. But the Registers used by us, have been allowed, and imitated by the French most exactly; for a Constitution, anno, 1553. made by Hen. 2. provides, that all Dispositions, Contracts and Obligations exceeding fifty Livres, shall be registrat; and if it be not re­gistrat, it shall be null, in so far as concerns third parties; the narrative of which Law, proves the advantageousnesse of Registers; for it bears, that after all other means have been essayed, we find that there was none save this of Registers to make our Subjects live in assurance, to obviat all Debates, and to prevent Cheats: In which, and these other Constitutions which follow upon it, all the methods used by us are exactly set down, such as the marking of Registers in every leaf, the having particular Registers in every inferior Jurisdiction, and the marking of the principal, or original Papers upon the back; there also the Coppies collationed are called Extracts. But that in this they imitated us, is clear, for we had Registers before the year, 1449. because by the twenty seventh Act, fifth Parl. Ia. 3. Reversions are appointed to be registrated; which Act speaks of Registers as then in being, and fully established.

I find also, that in the old Hansiatick Maritime Laws, tit. 11. art. 4. it is provided, that nullus nautarum, ullam silliginem, aut alia bona navi importet, vel exportet, sine scitu naucleri, & scribae navalis ubi etiam in registro poni debent. Which I observe to [Page 232] clear, that all Ages and Nations, Traffiquers by sea, as well as Lawyers by land, have thought Registers advantageous for Commerce, and a sure fence against Cheats: and if Registers be necessary in such mean, and transitory occasions, as Loadings and Moveables, much more are they necessary in Lands, which as they are of the greatest importance, so are of the longest duration.

Since then Registers have been found so advantageous, and that experience hath herein seconded reason, it is humbly conceived, that Scotland is much to be magnified for their Registers; And that England may, without disparagement, introduce this new amongst their old Statutes, whereby they cannot be so properly said to innovat, as to enrich and augment their own Law, Nec pudet ad meliora transire. But, I know that Nation to be so wise and provident, that if they understood our Registers, as well as they do their own concern, they would easily prefer them to those Reasons, which this Gentleman has offered against them.


Adde before the figure 2. lin. penult. Page 27. In answer to the French Pleading.

And that this condition can only be purified, or satisfied by a natural, and not by a civil or fictitious death, is clear by very expresse Laws, as l. 8. ff. de. cap. dimin: where it is said, Eas obligationes quae' naturalem praestationem habere intelliguntur, palam est capitis diminutione non perire, quia civilis ratio natu­ralia jura corrumpere non potest. Thus Gaius, one of the best Roman Lawyers hath said, that such interpretations doth cor­rupt the Law, and in effect mix things that are very different, invading the limits of Nature, and stretching fictions furder than they ought to go: and therefore, such criminal sentences as do not really kill, sed fictione civili caput diminuunt, are not termed death, but a punishment next to death, deinde proxima morti paena, damnatio in metallum, l. capi­talium, ff. de paenis. This likewise Papiniam decides, l. 121. ff. de verb. oblig. in Insulam deportato reo promittendi stipulatio ita concepta cum morieris dari non nisi moriente eo com­mittitur. And upon the same ground, l. cum pater, § here­ditatem, ff. de legat. 2. he determines our case expresly, and asserts, that such sentences cannot in fidei-commissis, be ac­counted death, haereditatem filius cum moreretur, suis vel cui ex his voluisset restituere fuerat rogatus, quo interea in insulam deportato, eligendi facultatem non esse paena peremptam placuit; nec fidei commissi conditionem, aut mortem filii haeredis existere: With whom agrees, Paulus l. statius §. Cornelia foelici, ff. de jure fisci, Cornelia felici mater scripta haeres rogata erat restituere hereditatem post mortem suam, cum haeres scripta condemnata esset, & à fisco omnia bona mulieris occuparentur; dicebat foelix se ante paenam esse, hoc enim constitutum est, sed si nondum dies fidei commissi venisset, quia potest ipse mori, vel etiam mater alias res acquirere repulsus est interim à petitione. Thus we see, that all the Roman Lawyers have conspired to allow only natural death, to satisfie such conditions as this is; death is [Page] the last of all things, rerum ultima linea, and therefore these sentences leaving still room to hopes and expectations, cannot be called death, which with the person cuts off all these. It is thought by the best of men already, that death comes too soon, why then should we precipitat it, and force it upon men before its time? And since one death is thought by all a severe enough punishment, why should we multiply a thing that is but too oft too unwelcome? Death is too serious a hing, to be counterfei [...]ed by such [...]fictions, and too severe thing to be quibled upon, by such interpretations.

Adde to pag. 124. lin. 20. at these words, after victuall was expresly prohibited.

I find, that by the Roman Law, l. 2. C. que res export. non deb. it is declared unlawfull to carry or sell Arms to the enemies of Rome; but though in Law, all that is not forbidden is allowed, and that there be there a full enumeration of what should not be carryed into enemies, yet Corn is not at all specified. And by the Canon Law, all such as supply Turks, and the other Enemies of Christian Religion, with Guns, Swords, & aliis metallorum generibus, & instrumentis bellicis, are an thematiz'd; yet, there is no execration pronunced against such as supply them with Victuals: and though to carry Wine or Oyl to Bar­barians was punishable by the Roman Law, l. 1. C. e [...]d. Ne quidem gustus causa, aut usus commerciorum, least the delicacies of the Italian Fruits should have tempted those to invade it, yet, that Law did not at all reach their Allies, nay, nor did it so much as prohibit even in Subjects, the sending Corn to Ene­mies who were not Barbarians: So that what ever may be [Page] alledged against Allies, who buy Corns to carry into Enemies; yet it seems most unjust that the Swedes, who carry in only their own product, either Corn, or stock-fish to sell them, should be proceeded against as enemies upon that account, and at this rate, Sweden could no where sell their Corn, nor other native Commodities, for they can only vent them either in Holland, France, England, or Denmark, and all those being now ingadged in this War, the poor Swedes behoved to loss all their own Rents, and want all these necessaries with which they can only be supplied from the product of these, and here the Swedes cannot be so properly said to supply the Hollanders, as to entertain themselves, and His Majesty would sooner starve thus His Allies, then His Enemies. And though Princes may impose these hard terms upon their own Subjects, yet it were hard they could tye their Allies to the same terms: which makes me believe, that the decisions related by Boer, decis. 178. and by Christinaens, decis. 64. wherein they relate, that the exportation of Corns in time of War is a sufficient reason for confiscating both Ship and Goods, Frumenta, Vina & Olea, existente prohibitione ad exteros, praesertim inimicos, expor­tare non licet, Christian. ibid. for exportation being only prohibi­ted, it can only extend to Subjects; for none can export properly, but they; for Allies cannot be said to export when they trade, for to export is to carry out of the place where the prohibition was made.

I confesse, that the carrying in Corns to Holland may seem a greater supply to them, then it would be to any other Nation, because their Countrey cannot supply them with its native product; yet, since they have the [...]bine, the Me [...]z, and other Rivers open to them, in which His M [...]jesties Ships can­not stop their Commerce, they will be abundantly supplied with Corns, though Sweden could be bound up by this Treaty from supplying them: So that His Majesty will prejudge thus His Allies the Swedes, in their Commerce, without wrong­ing his enemies, as to Corn or other Provision.

[Page] And to clear, that the Comeatus here prohibited, is only Corn carryed in to Citties besieged, or to Armies of the Enemies, but that our Allies are not absolutely prohibited to carry Corns to any who are in enmity with us; your Lord­ships will be pleased to consider, that Comeatus signifies pro­perly, a liberty granted to Souldiers to go and return salvum con­ductum, as is most clear by the whole Title, C. de commeatu. And though some have taken the word thereafter in a transla­titious sense, pro cibariis & alimoniis exercitus, yet to extend that to all Corn carryed in by way of Commerce to an Enemies Countrey; seems very hard; Especially where it is not carryed in alimoniae sed commercii ergo, and though Corn as the staff of life; be sometimes specially prohibited, yet that should not be extended to Stock-fish and other lesse necessary provisions: and though it were extended to these, yet the carrying so small a quantity could no more be esteemed a contravention of the Treaty, then the carrying a little money (without which there can be no Trade) could be esteem'd a breach of that part of the Treaty, whereby pecunia or money is ordained not to be carryed; Si quis ab initio sui usus causa exportaverit, postea vero quia non indigeret partem vendidit legem non offendit, Ludovic. con­clus. 25. circa modum usus tunc praesumitur cum modico quantitas vendita est, Tuld. tit. C. quae res export, num. 6. From which I conclude, that the prohibition of carrying in Money, or Victu­alls, can only reach those who carry them in great quantities, or to besieged Citties, or Armies, or principally for the ad­vantage of the Enemies, and for strengthening them in War against His Majesty; for since to restrain this, is the only design of the Treaty, the words in the Treaty should be interpreted suitably to this design: and thus this poor Ship can only be con­demned for its original sin, having carryed Contraband in the former Voyage.

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